Bad fences make bad neighbors for the Cherry Creek Farm HOA and its residents

Tom and Courtney Myers moved into their home in Cherry Creek Farm more than a decade ago, and for many years, they enjoyed their cookie-cut sliver of the moderately affluent neighborhood. Their split-level house, which they share with their aging black Labrador, Max, boasts glinting dark wood floors in the kitchen and dining area, Victorian armchairs and a small cabinet of top-shelf liquor in the living room.

The 33-year-old Englewood development, with 216 houses, seems like a nice place to live, maybe even to start a family. It features two greenbelts and is nicely tucked to the south of the city's hubbub, but not too far from the business epicenter. The grass is green in the summer, and the sidewalks and yards are nicely kept.

A construction contractor, Tom hails from Rhode Island, while Courtney, who was born and raised in Denver, works as an executive assistant at an investment firm. They don't seem like the type to cause trouble, and they certainly never meant to start a war.

But when Tom started asking questions about a proposed nine-foot fence that would run down an edge of the neighborhood and be paid for with homeowners' association dues, he opened the floodgates for all manner of grievances and kicked off a hellish, almost surreal battle with the Cherry Creek Farm Homeowners Association that consumed the couple for two years and landed in them in a court battle with the HOA.

The fight pitted neighbor against neighbor until association meetings became shouting matches that elicited numerous appearances by Arapahoe County sheriff's deputies. One neighbor even filed assault charges against another after an altercation at one of the meetings.

"We just stood up to them, that's all," says Tom, rummaging through the towers of boxes of court documents that once filled the Myerses' living room. "Some of the homeowners don't know they have rights. The frustration is, there's no governmental body that enforces state law. You have to sue your own HOA to enforce the law."

The state legislature may soon consider a bill to create an ombudsman who would be able to mediate or assist in disputes between HOAs and home-owners. But even if it passes, it's too late for Cherry Creek Farm, where some fences will never be mended.

The problems began in early 2008, when the Myerses' next-door neighbor, Colleen Larsen, asked the HOA to consider building a higher fence along the community boundary line that would block out the less-than-aesthetically-pleasing apartment-complex parking lot that abuts the housing development, including the Myerses' yard.

Cherry Creek Farm residents believed the parking lot had been the entry point for a string of recent burglaries in the neighborhood.

Moreover, Larsen didn't like the sight of rusted campers and late-night approaching headlights, so she'd done what any smart homeowner would do: She ran and was elected to the volunteer HOA board.

"It was security more than anything else," Larsen says. "I mean, obviously, when you back up to a parking lot, you're at greater risk for crime, and the fact of the matter is, the fence — it's falling down. It's 32 years old."

In March 2008, the Myerses and about a dozen neighbors on Emporia Circle received notice that the HOA was considering the nine-foot fence and that the homeowners would have to pay for it, as it would be located on their properties.

Tom Myers was immediately and fundamentally opposed to the idea. "I know the parking lot's there," he explains. "I bought it that way. But when did they get the right to say let's take money out of the budget and just bill us back? It's ridiculous."

So, as the notice requested, Myers wrote his feedback in the space provided: "I OPPOSE TO THE BOARD FUNDING IN ANY WAY THIS FENCE." He also gathered signatures from seven of the eleven residents along Emporia Circle and took them to the March 28 HOA meeting to make his case.

At that meeting, the three-member board told Myers that the notice was only a questionnaire, designed to gather information. Satisfied, Myers left. But just minutes later, according to the minutes from that meeting, the board told its management company, Castle Rock-based TMMC, to ask the Arapahoe County planning division for approval of the taller-than-normal structure.

When he found out, Myers was "pissed." The planned fence would have to be paid for with a special assessment, a bill to homeowners on top of the yearly $497 dues per house that go toward maintenance on everything from sidewalks to signs in the neighborhood. So, hell-bent to prevent it, Myers marched to the next meeting, on May 19, 2008, with an attorney.

After listening to Myers's loud opposition to the fence, the board reluctantly agreed to abandon the idea and promised to seek a refund from the county for the $500 permitting process.

But the meeting wasn't over — far from it.

After the fence issue was dismissed, homeowner and board vice president Tracy Alvarez brought up the subject of a backyard patio enclosure that Myers had been chipping away at for five years. She asked him when he was going to request approval, per the association's rules, for the project. Since the enclosure couldn't be seen from the street, and because he had never been asked about it before, Myers says he was stunned by the questions and got into it with Alvarez. As the minutes read: "[Tom Myers] and a member of the board then exchanged words, and another homeowner present expressed her displeasure with how the meeting had been handled."

Myers's memory of the spat was a little less muffled. As he recalls it, Alvarez verbally attacked him, calling his home "a slum" and "a shithole."

Alvarez admits to the language, but says she was goaded by Tom's attorney, Craig Chambers. "Actually, I called it a slum because that's what it looked like," she says now. "I called it a slum, and his attorney called me a racist, which I took offense to. I think that he was mistaking the word "slum" for "ghetto," which is not a racist word, either. I did feel because I'm Jewish that he shouldn't have said that to me, so I said, 'Would you prefer that I called it a shithole?,' which I should not have said.

"It was in the heat of the moment," she adds. "If you had seen his house at that point, you might have called it the same thing."

Chambers denies calling Alvarez a racist, but says he alluded to the historical racial connotation of the word "slum." "Probably I shouldn't have said that, but she has no business being on the board. She has a responsibility to the board to be professional.

"And the thing is, it's a really nice house, and all they've done in this whole thing is try to make their house nicer," he adds. "I should be lucky to have a shithole like that. I mean, it's nicer than my house."

Another homeowner at the following meeting asked the board to apologize to Myers, but it didn't. However, Alvarez says she did apologize to homeowners at the next meeting, but didn't feel like she owed Myers the same courtesy. By the time summer rolled around, Myers and his feud with Alvarez and the HOA had become hot neighborhood gossip, and alliances had formed between neighbors and the board.

And that's when things got really weird.

Prior to the May board meeting, the HOA had sent Myers a letter demanding that he paint his entire house. As is the case with most HOA regulations, CCF covenants require homeowners to adjust their properties when asked so the community will retain its property values. But the Myerses had painted their home — "Russian River," a board-approved color — just three years earlier and didn't understand why they were being asked to do it again.

Rather than comply, Myers wrote back, asking to what extent the HOA wanted him to fix up his place and accusing the board of acting "arbitrarily and capriciously." "What were the criteria?" he asks. He felt the HOA had singled him out personally.

The HOA didn't respond to the rebuttal, in which Myers also asked for a customary hearing that homeowners are allowed. "They never responded to my letter, so I thought it was moot," he says. Instead, the HOA handed the issue over to TMMC, the management company that gets $2,000 a month to handle the nitty gritty of covenant control for Cherry Creek Farm. TMMC then sent a letter, via its attorney, demanding that Myers not only paint his home, but also remove lumber from the back yard and finish the work on his deck. TMMC charged Myers $185 in legal fees for the attorney's letter.

Myers continued to challenge the demands by mail until September 2008, when the board got a court order against him. (At this point, he had still not painted his home or asked for approval to work on his deck.) But on November 13, the day Myers was supposed to face the HOA in court, TMMC's lawyers didn't show up.

TMMC spokeswoman Denise Haas wouldn't comment, but Myers suspects the company didn't appear because it had never expected a homeowner to fight back.

So Myers and his attorney decided to file a countersuit against the HOA, alleging "intrusion of privacy," "outrageous conduct" and violations of Colorado's Common Interest Ownership Act, the primary law governing HOAs.

And at that point, Myers says, the other residents of Cherry Creek Farm starting paying attention. "What kind of happened in the neighborhood is, nobody really paid attention to the board. I think that our lawsuit started to enrage people."

In October, about 100 residents of Cherry Creek Farm convened for a special meeting to recall the members of the volunteer HOA board (others voted by proxy), citing complaints ranging from a lack of "consistency in covenant control" to increases in dues to failing to provide a "sense of community."

The environment beforehand was so tumultuous, though, that sheriff's deputies were asked by the HOA board to attend the meeting, says Arapahoe County Sheriff's Captain Larry Etheridge. (The officers would attend five additional meetings.) But the coup failed when the votes came back 74 to 62 in favor of the existing board.

After that, the HOA pursued an ever-increasing campaign of harassment against the couple, Myers says, one that that continued for an entire year.

According to county records, Alvarez and Larsen filed dozens of complaints with the county about things like the gutter run-off from the Myerses' house and their patio lights; they also requested stop-work orders for his backyard project.

The two also called the police for various reasons, including one occasion when, Myers claims, he was emptying out a camp cooler, and "pretty much any time I hammered in a nail.... It used to be that the cops, the sheriffs, would come every week."

Etheridge says that in one year's time, his deputies filed nine reports from the Myerses' house, but adds that they may have visited more often: "Some incidents result in reports, and some don't."

At one point, tension in the neighborhood became physical. After a particularly contentious HOA meeting in April 2009, Alvarez's husband, Jon, and another resident, Bobbi Henderson, apparently got into a scuffle. The next day, the police went to the Alvarez home and charged Jon with misdemeanor assault. A subsequent restraining order included the unusual stipulation that he remain at least five yards from Henderson at HOA meetings. A trial is set for April.

When the cops weren't at their house, Myers says, the HOA was.

At one point, the board spent $2,500 of HOA money to have the old fence surveyed just to be sure that Myers and his neighbors actually owned it. Later, boardmembers managed to arrange for a state-certified engineer to come onto Myers's property to inspect his patio enclosure for possible issues with wiring and safety issues. (An engineer's report reads: "The addition appears to be constructed in general compliance with the structural design requirements.")

On a couple of days, Tracy Alvarez even crept around to the adjacent apartment complex to surveil the Myerses' home. On one of those afternoons, another neighbor took photos of Alvarez standing in the shrubs snapping photos of the Myerses' back yard. Alvarez says she took the photos to document the goings-on at the "slum."

"It was a whole year of crazy," Courtney Myers says. "They were basically using their power because they don't like something."

Larsen and Alvarez deny that they were abusing their power or pursuing a vendetta against the Myerses or intended to harass them. "Just to be perfectly clear, the board never decided to go after Tom. That's just not what happened," Larsen says.

In fact, Alvarez believes it was the other way around. "I think most of this was started by Tom Myers," she says. Before Myers took on the fence, attendance at HOA meetings was scarce, she determined, but after the lawsuit, the meetings became a hotbed for conflict that brought out all kinds of accusations against the board.

"Tom was the one who really started all the fighting in the HOA. Basically, he had the goal of sabotaging the board and bringing down the HOA completely. And he's succeeded," she says. "It's only the crazies that come to the board meetings anymore."

Oddly, Alvarez and Myers do agree on one thing: that HOAs are at the mercy of the management companies they hire and those companies' attorneys.

"The board was pretty much blamed for [the lawsuit] even though it was the attorneys," Alvarez says. "The board is all lay people; we're dependent on our lawyers."

Chambers, the attorney who represented Myers, says the problems lie with the tactics that management companies use and the influence they exert over HOAs. But he also points out that there is no one regulating HOAs in the state, so boardmembers can use their position to make arbitrary rules and make things miserable for other homeowners.

"There are hundreds of stories like this," he says, adding that after he noted on his old website that that he was familiar with HOA rules, he was bombarded by homeowners who had issues with their HOAs but didn't know where to go.

"The Myerses were a good case because they paid their dues," Chambers says, noting that many disgruntled homeowners will stop paying their dues during a dispute with their HOA, which only gives the HOA and their management companies more grounds to sue and tack on late fees and legal fees. "So then your choice is to pay the $15,000 in dues or they foreclose on your house. Somebody needs to put a stop to it," he says, and the first step is some sort of government oversight.

That's exactly what state representative Su Ryden is trying to deliver. The Aurora Democrat has co-sponsored a bill that would create an HOA ombudsman's office that could "advocate on behalf of unit owners, mediate disputes and act as a clearinghouse for information on the governing law." The proposed HOA Information/Resource Office would be funded, she says, by fees paid by the HOAs themselves.

Though her political boundary does not include Cherry Creek Farm, Ryden says she's heard plenty of complaints from homeowners and their HOAs who want some sort of resource besides the courts when things get nasty.

"We're trying to prevent litigation that really, in most cases, neither side can afford," she says. "I think that's a huge goal. If we can eliminate people getting so far down the road that that's where they're ending up, that would be huge."

So far, there has been no talk of regulating management companies like TMMC, she says. But TMMC's Haas says she'd welcome it "because it gives them a neutral third party. I'd have to really see how it plays out and what the ultimate role is."

Rita Guthrie, president of the Community Associations Institute, a non-profit trade group representing HOA interests, says the relationship between homeowners and their HOAs involves a lot of trust. "There should be open communication. The homeowner should never feel like they can't come to the board," she explains. But "if the board goes after the homeowner in a negative way, there probably isn't a whole lot of recourse but to go to court. The sad part for the homeowner is, when you're turned over to the attorney, that little $300 you couldn't afford all of a sudden becomes $600. It virtually doubles."

In her twelve years with CAI, Guthrie has listened to plenty of interesting stories, but she says this is the first time she's heard about a neighbor-on-neighbor assault after an HOA meeting. "It's really, really sad. That's not what we support."

By January 2010, most of the drama in Cherry Creek Farm had ended.

A new board, this time with five members, took over after a regularly scheduled election and chose to settle with the Myerses for $25,000 in the lawsuit that the couple had filed against the HOA. (Alvarez is still serving on the board; Larsen has left.) In addition, the Cherry Creek Farm HOA and TMMC parted ways.

But new board president Jayne Cordes says the settlement was simply a way to end the fighting. She believes the Myerses were in violation of HOA rules, plain and simple. "I didn't see the whole thing stopping unless there was a settlement to him. It was not an admission that 'Hey, Tom Myers, you were right and the HOA was wrong.'"

But Cordes has other concerns. Now that the legal battle is over, the HOA's budget is much tighter, and she will have to navigate the hearts of what several Cherry Creek Farm residents called a "divisive" community.

Alvarez says the damage has already been done. "We've lost almost all of our friends," she says. "No one speaks to us anymore because of Tom Myers."

And Myers says he's still being harassed. "I received a call approximately three weeks ago from zoning, and just last week I got a call from the sheriff's office." Still, he believes he's done what's right. "I didn't do this for me. I did it for the neighbors. I did it because I didn't want them preying on the weak homeowners."

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J. David McSwane
Contact: J. David McSwane