Intervention for Homestead

The Intervention:
A group of Homestead homeowners have hired an attorney to intervene on behalf of homeowners due to concerns for the ongoing deterioration of Homestead as the lawsuit drags on.  The following summary of their Jan. 27th hearing before Judge Freeman is from court documents and transcript.

1. The intervenors’ reason is to protect, “…interests that are not currently being met by either party.”Specifically, the COS, ponds, and golf course are not being maintained by declarant, and the current litigation “…is contributing to the decline of the property, both physically and monetarily…” 
2. The intervenors wish to, “…obtain an injunction requiring Defendant to repair, maintain, and keep up the common open space and the storm water maintenance system serving Homestead.”
3. The intervenors seek to move to, “…decertify the class as significant division exists between Homestead members regarding propriety of paying assessments, to whom those assessments should be paid, and to enable current declarant to complete negotiations with a ready, willing, and able buyer of the golf course.”

We agree with the intervenors that both sides are responsible and our community remains divided. The real tragedy for many of us is that Lynden is known and loved for being a  “churched” city, a witness to the difference faith can have on how we live as neighbors and friends. We regularly hear from those who have been steadfastly praying for 3 years, and from those who refuse to be involved anymore because of what they’ve seen and heard. 

In 2020, Mr. Andersson told us “the matter could possibly be settled in 2-3 months…” We are now beginning a new year and while some might be willing to wait another 8 months for a trial (scheduled for 9/6/23), we believe most of us would rather move forward with a local owner. 

Intervenors’ Attorney’s Motion to Intervene:
Intervenors’ attorney, Mary Reiten, specializes in class actions and community associations (HOA, COA)  Her Motion to Intervene stated the following: 

1. Named representatives (the plaintiffs), “must monitor the conduct of class counsel (lawyers) throughout the litigation. Here, not one of the class representatives submitted a declaration in support of class certification…”
2. MJ Management was dismissed “without a fairness hearing in violation of CR 23 (e).” 
3. How the plaintiff lawyers handled MJ’s dismissal, “illustrates that this case is about the money, and not the outcome. Intervenors are concerned about the outcome.”
4. “Plaintiffs’ counsel has encouraged class members to pay them their monthly dues rather than Defendants, siphoning off much needed maintenance funds.”
5. Plaintiff lawyers are wrong “when they assert the court has no power to impose a homeowners’ association on Homestead. Under CR 23(b)(1) and CR 23(b)(2) the court has that power because no one in the Homestead development can opt out of those classes. Intervenors are opposed to the imposition of a homeowners’ association and for this reason alone, intervention is appropriate.”
6. A significant number of Homestead members “want this class action to be dismissed.”
7. The intervenors cannot opt-out because the class action was certified under three subsections (remedies), two of which are “mandatory” classes.
8. Intervenors who did opt-out remain a part of the class because there are “no opt-out rights within these two mandatory classes.”

Note: These statements were a surprise to us. 

1. The 4-page, opt-out letters sent to 600+ homes in Homestead were not valid? Who paid the postage for those letters with their enclosed pre-paid envelopes that would have cost hundreds of dollars? And why would plaintiff lawyers send letters offering us the choice to opt-out when there was really no choice?
2. MJ Management’s dismissal was done in violation of CR (Civil Rules) 23e?  Here is that rule: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Not only did we not know about MJ’s dismissal, it was tucked into the 3rd amended complaint instead of being a separate document – why?

Matt Davis’ Response to Motion to Intervene:
Plaintiffs’ attorney Matt Davis’ made the following statements in his response to the Motion to Intervene:

1. Intervenors do not have legal standing as most have opted-out, leaving the opted-in members representing only “0.65% of the PRD.”
2. The Court should allow intervenors to achieve their goals by opting-out.
3. There are two forms of intervention, both of which require class members who have not opted out.
4. No court order can impose an HOA as they are governed by Common Interest Ownership Act, RCW Ch.. 64.90
5. Intervenors’ timing of this motion was to, “…deprive the more than one thousand class members of the benefit of this action…” 

To verify this allegation, we reached out to a few of the intervenors and asked when they had hired their attorney; it was Oct. 2022. And then we checked the date on the Court Order to set trial date; it was Jan. 4, 2023.  Since the intervenors could not possibly have known in October what the court would decide in January, this is pure conjecture. 

Note:

1. In the plaintiffs 3rd Amended Complaint of July 15, 2022, the lawyers state (line 42): “The class consists of approximately 600 property owners.”
2. In Lynn Button’s letter to Mayor Korthuis in July 2021, he claimed, “There are approximately 2,500 residents that are impacted in the litigation, of which over 90% are supportive.” 

Legal documents should contain statements of fact, including the true size of the class being represented; 90% of 2,500 does not equal 600 or 1,000.

The Hearing:
On Jan. 27th, intervenors and their attorney, Mary Reiten, attended a hearing before Judge Freeman. Based on the transcript, Mr. Davis argued the intervenors merely disagreed with the lawsuit, which did not give them a legal interest or standing.  Ms. Reiten responded that every class action has dissenters but plaintiff counsel had shown no interest in talking with those who opposed them. Each reiterated their respective motions as summarized above, and Judge Freeman ruled to allow the intervention.

Trial Date:
Matt Davis expressed concerns their Sept. trial date would be delayed or removed by the intervention. Mary Reiten stated the intervenors were not asking to change or remove the trial date but the plaintiffs, if they felt they needed more time to prepare, could request it.  Judge Freeman told both sides the trial date was set, and the intervention would be allowed “across the board.” 

Judge Freeman then gave a detailed explanation about his decision to deny plaintiffs’ counsel request to exclude storm ponds from common open space.
Here are two of his statements:
“I do believe that there is extensive extrinsic evidence that a stormwater system was contemplated in the creation of this community.”

“The stormwater system is clearly tied into the original plan for the community.” 

Regarding his decision to deny their request and determine if storm ponds remain as COS, he said, “…it’s a question of fact for the jury to decide.”