Judge orders HISID into mediation in two assessment lawsuits
HOLIDAY ISLAND -- After a failed attempt at informal, out-of-court settlement of two HISID lawsuits over the 2011 Assessment of Benefits, on Nov. 28 Judge Gerald Kent Crow ordered the parties to mediation, with costs to be shared by all equally.
According to court documents, on Oct. 16, the parties in two lawsuits met informally to try to settle out of court.
One suit is being brought by property owner David Bischoff, whose revised complaint charges that the Assessment of Benefits done in 2011, which sets a new assessment rate for 2012, was done in violation of state law, which he contends does not allow assessment based on property owner usage of improvements or value of parcel, but only on accrued benefit to each lot. The suit also charges that HISID did not follow proper procedures for filing the AOB.
Bischoff requested the court to declare a judgment that HISID violated state law in its AOB process and to recalculate the assessed benefits for each lot.
Table Rock Landing Time Share Owners Association is suing HISID for charging excessive assessments over a period of 12 years and for discriminating against timeshare owners over golf fees based on what it says is an unwritten policy to charge guest rates to property owners delinquent on their assessments.
The Oct. 16 negotiation failed to begin when developer Tom Dees, CEO of HIDC, but also a board member of TRL, came to the meeting as a representative of TRL. According to TRL's statement, HISID refused to engage in any negotiation with him in the room, and TRL would not continue without him.
HISID attorney Matt Bishop said by phone Monday he will not comment on why.
However, Dees and HISID have been in conflict for several months over Dees' contention that HISID violated its marketing contract with him when it billed assessments to HIDC for lots to be marketed under the contract terms.
He sent a letter canceling the contract and quit-claimed hundreds of lots to the district.
Bischoff and HISID were unable to reach a settlement between them at the Oct. 16 meeting. Both Bischoff and TRL asked the court to compel HISID to pay their attorney fees for the failed negotiation attempt and for any future mediation. TRL said HISID never made clear it would refuse to negotiate if certain persons attended the meeting. HISID responded it hadn't brought the lawsuits, and it also could not avoid attorney fees for the wasted meeting.
Bishop, pleading for formal mediation, wrote, "...It is this type of squabbling a trained mediator typically is able to overcome."
At the core of TRL's suit is an accusation that HISID is engaging in "improper planning and zoning," through its assessment process, in violation of state law.
"It specifically differentiates residential property from commercial property and differentiates timeshare property from both of those, and clearly charges a higher rate for timeshare owners than residential owners, despite the same legal status of those types of ownership for taxation/assessment purposes," wrote TRL's lawyer, Joel D. Johnson.
HISID agrees it cannot legally zone and contends it did not engage in zoning, as it does not impose land use restrictions, regulate the properties of buildings, impose parking regulations or create districts for development, administration or enforcement.
All of that, it says, is determined by the Declaration of Reservations, most of which are signed by the developer.
"None were adopted by the board of HISID," Bishop wrote, and HISID merely uses them as "one of the factors in assessing the benefits accruing to particular parcels" and in fact, is required by state law to be included in the assessment of benefits.
TRL also objects to HISID charging timeshare owners guest fees for golf rather than property owner fees, based on TRL's failure to pay the full assessment billed. TRL has paid around $4,000 more at guest rates.
It claims HISID has no written policy for doing this and only ever used it against timeshare owners since the assessment dispute began.
The resolution of these suits could ostensibly affect all property owners, even though they have not been filed as class action suits.
Bischoff's lawyer, Tim Hutchinson, said by phone Monday he does not wish to speculate about how whatever agreement they come to in mediation might affect all property owners.
Johnson was unable to be reached by phone as of press time.
The parties involved have 30 days from the 28th to complete mediation.