Bent Tree Ballot Results for Proposed Parking Covenant Change
Second, the attorney's explanation of how his office counted votes and certification of results.
Third, an explanation of ballot (includes substance of the content voted upon).
[Webmaster's note: There are three Declarations of Protective Covenants for Bent Tree's five filings.]
Filings I & II:
The voting was conducted by law
firm Anderson, Dude & Lebel, P.C.
Mr. Stephen J. Lebel provided the following communication about ballot results.
Dude & Lebel, P.C.]
Sent: Wednesday, April 06, 2011 8:46 AM
To: John Heiser [BTPOA Board of Directors]
Subject: Election results
Re: Results of Proposed Amendment Vote
We have finished counting the ballots sent to our office by the members in connection with the proposed amendment. As explained below, more than 80% of the membership voted; only one ballot was mailed to us after the deadline (and was not counted); the total vote was exactly even; and the proposed amendment failed to receive the necessary 67% approval in any one of the three voting groups.
We conducted the count in two stages, because there were three different groups of envelopes. There were 156 envelopes that had complete return addresses, which allowed us to separate those envelopes into the three (3) appropriate voting groups. However, there were six envelopes that had incomplete return addresses, which had either unclear names or no names (just addresses). However, we were able to identify three (3) of those addresses, which allowed 159 envelopes to be counted in Stage 1.
The remaining three (3) envelopes in the second group had to be put in the last category, which had forty-nine (49) envelopes that had no return addressees. After including the three (3) with unknown addresses (see above), there was a total of fifty-one (51) envelopes that were counted in Stage 2.
We opened the 159 envelopes in Stage 1, one voting group at a time. In each case, we collected and scrambled all the ballot envelopes for that group, which were then opened. We then verified the ballots (by number), and then counted and recounted each ballot.
There were seventy-seven (77) envelopes in Stage 1 that had ballots for the first voting group (Filings I and II). Those ballots were counted and recounted (as described above), and we determined that there were thirty-five (35) in favor and forty-two (42) opposed to the proposed Amendment. Since forty-one (41) “no” votes would make it impossible to reach the necessary sixty-seven percent (67%) of the 124 lots in Filings I and II, the proposed Amendment was defeated without the need to count the unmarked envelopes that were part of this voting group.
The same process was followed for the forty-four (44) marked envelopes for Filing III, and we determined that there were thirteen (13) that approved the Amendment and thirty-two (32) that were opposed to the Amendment. Since twenty-four (24) “no” votes would make it impossible to receive the necessary sixty-seven percent (67%) of the 72 lots in Filing III, the proposed Amendment was defeated without the need to count the unmarked envelopes that were part of this voting group.
The same process was followed for the thirty-eight (38) marked envelopes that had ballots for Filings IV and V, and we determined that twenty-seven (27) voted yes and eleven (11) voted “no” as to the proposed Amendment. As a result, it became necessary to count the unmarked envelopes (see Stage 2 below), because:
(a) if there were 14 “yes” votes for Filings IV and V in the fifty-two (52) remaining envelopes, that would meet the forty-one (41) votes needed to approve the Amendment in that voting group; and
(b) all the envelopes had to be opened in order to determine the voting group
Since the fifty-two (52) remaining envelopes did not identify the member, we opened each envelope (and the ballot envelope), discarded the ballot envelope and stapled the ballot to the envelope; and then checked (a) the voting group; and (b) the ballot numbers. This technique preserved the secrecy of the ballots, and it allowed us to examine the numbers on each ballot (against the numbers checked off during Stage 1), to make certain that all the ballots were valid.
By this method, we determined that there were twenty-five (25) envelopes with no return address that had ballots for Filings I and II; seventeen (17) envelopes with ballots for Filing III; and another ten (10) envelopes with ballots for Filings IV and V. We determined that all the ballots were genuine, because there was not a single instance where two ballots had the same number, even though 212 ballots were sent to this office.
Out of the twenty-five (25) additional unmarked envelopes in Filings I and II, we determined that there were sixteen (16) “yes” and nine (9) “no” votes. As a result, the end result in the first voting group was 102 of the 124 lots in Filings I and II cast ballots, and they were evenly divided, fifty-one (51) in favor and fifty-one (51) opposed. As a result, the measure was defeated for Filings I and II, as it did not receive the necessary eighty-four (84) affirmative ballots.
There were seventeen (17) additional unmarked envelopes in Filing III, and we determined that there were eight (8) in favor and nine (9) opposed to the proposed Amendment. As a result, sixty-two (62) of the seventy-two (72) Lots in Filing III voted, and there were twenty-one (21) “yes” and forty-one (41) “no” votes. As a result, the measure failed in Filing III, because it came nowhere near the forty-nine (49) necessary “yes” votes.
Out of the ten (10) additional unmarked envelopes that had ballots for Filings IV and V, we determined that seven (7) were in favor and three (3) opposed, raising the total for that subdivision to thirty-four (34) in favor and fourteen (14) opposed. Although this voting group was the only one that received a majority approval for the proposed Amendment, only forty-eight (48) of the sixty-one (61) lots voted, and it fell short of the forty-one (41) affirmative votes needed to pass the proposed Amendment.
The overall total was 212 ballots cast, which were evenly divided, between 106 in favor and 106 opposed, with Filings IV and V having an overwhelming number in favor, but Filing III had an overwhelming number opposed, and Filings I and II were evenly divided.
There were two (2) ballots in one envelope in the Filing III voting group, because that member owned two lots. In two cases, the ballots were initially assigned to the wrong voting group, but the problem was discovered and corrected before any of the ballots were counted.
Another ballot (in Filing III) had a handwritten notation on the ballot, because the member used “white out” to change his vote before he sent the ballot. Since he put his name next to the correction, he waived his right to a secret ballot. However, every other member who voted, followed the voting instructions, except for the late ballot we did not count (which was postmarked 4-1-11).
There was only one instance of a minor problem with the numbering system, where someone crossed out the ballot number that we had assigned (in the first voting group) and wrote in a different number. Since the two numbers were very close, we believe that owner put his (or her) Lot number in place of the assigned ballot number, in the mistaken belief that ballot number had to match his/her/their lot number; however, the original number was clear and in the proper handwriting.
The large turnout (212 ballots) and the tie vote support both the attempt and the decision to vote by mail. In amendment efforts where owners are asked to sign, a response of 50% or less is very common, and the 67% requirement fails due to owner apathy. However, in each of the three voting groups, there were sufficient ballots cast to have met the requirement of sixty-seven percent (67%) of the lots in that group, which is very difficult to achieve. In this case, over eighty-two percent (82%) of the membership participated; and there was not a single instance of fraud that we could detect.
We have saved all of the materials, which are divided into the three voting groups, with two sets of ballots in each group (one for each Stage). If anyone wishes to inspect the results for themselves, it would be necessary for that individual to complete the application from the Association, and to pay the cost, in advance, to have one of our staff members supervise their review (so long as this office retains custody of the ballots). We have saved all of the envelopes and the ballots.
I hereby certify these results as valid. Please advise me if you need any further assistance in this matter, or if the Association wishes to take (or copy) the ballots.
Stephen J. Lebel
EXPLANATION OF BALLOT
At the present time, the covenants prohibit parking of vehicles that are readily visible from streets or adjoining properties. However, at the 2010 Annual Meeting (September 2010), the Board was asked to put to a vote of the neighborhood a change to the covenants to allow parking of a maximum of two registered, operational vehicles in a resident’s driveway. There would be no change to the current prohibition of on-street parking.
The materials included with this document include a Ballot with instructions for voting on this question. Please follow the voting instructions on the Ballot in order for your vote to count in the tally.
The Board has not taken a position on this issue and this action was not a unanimous action by the Board. Some directors believe this is an appropriate accommodation for the changing needs of Bent Tree residents, while other directors believe that the Developers’ original intent of a vehicle-free, natural appearance should be preserved. However, the Board believes that an intentional vote should be taken to confirm and settle the issue. The remainder of this document explains the current wording and the proposed changes.
[Webmaster's note: The following explanation generalizes the specific differences in Bent Tree's three Declarations of Protective Covenants to capture the substance of the change, rather than legal citations and paragraph numbers, which differ in the three Declarations.]
Delete the following: “Automobiles and small boats will not habitually be parked overnight outside of garages.”
Delete the following, found in Filings I and II only: “No vehicles or equipment will be parked permanently or temporarily on “flagpoles.”
Delete the following: "VEHICLE PARKING AND EQUIPMENT: No vehicles shall be stored or parked within the subdivision except in a closed garage; however, recreation vehicles to include travel trailers, horse trailers, campers, boats or a motor home and various equipment may be kept in an organized manner to the rear of a house if not readily visible from public streets nor reasonably from other lots within the subdivision. Screening such vehicles from public view with proper garaging or fencing, approved by the ACC is required. The intent of this covenant is to prevent clutter and enhance natural appearance."
Insert the following: "VEHICLE PARKING AND EQUIPMENT: No more than two (2) vehicles may be parked in a resident’s driveway on any tract in Filing III, and those vehicles must be registered and licensed in accordance with Colorado law, and cannot be parked on any street or road in said Filing. Notwithstanding the above, no junk or inoperative vehicles (as determined in the sole discretion of the Board), nor any trucks larger than one ton or any commercial vehicles shall be stored or parked within the subdivision except in a closed garage; however, recreation vehicles (to include travel trailers, horse trailers, campers, boats or a motor home and various equipment) may be kept in an organized manner to the rear of a house, if not readily visible from public streets nor reasonably from other lots within the subdivision. Screening such recreation vehicles from public view with trees, proper garaging or fencing approved by the ACC, is required. The intent of this covenant is to prevent clutter and enhance natural appearance, but to allow daily-use vehicles to be parked in a resident’s driveway."