HISID rejects 'final' TRL offer, counter-offer

Friday, March 15, 2013

HOLIDAY ISLAND -- The Holiday Island Board of Commissioners voted Tuesday to reject Table Rock Landing Time-Shares Association's latest, and, according to TRL, "final" offer to settle its lawsuit over assessment rates.

It also voted down a counter-offer proposed by Commissioner Greg Davis.

In a letter dated March 7, TRL attorney Joel Johnson stipulated that all prior settlement offers were withdrawn and that the enclosed Declaratory Judgment offered, if not accepted by HISID within five days, would prompt TRL to pursue discovery and a request for the court to set the matter for hearing on a Motion for Summary Judgment.

HISID attorney Matt Bishop told the board Tuesday that Judge G. Kent Crow has recused in the case, without giving a reason, and no matter what is accepted, it can't be ruled on until a replacement judge takes the bench. That could take some time, he said, as a new judge may not set a hearing right away.

Crow entered recusal notices on both the TRL lawsuit and another open case, Bischoff v. HISID, on Feb. 27.

The offer sets the terms as being effective Jan. 1 of this year. They stipulate that, beginning with the 2012 assessment and ongoing, the 28 time-shares will be charged the single-family rate. TRL agrees to release and dismiss its claim for punitive damages and refund of assessments paid prior to 2011 in excess of the R-1 rate. HISID will not need to refund any amount in excess of the R-1 rate for 2011, nor will TRL pay HISID for 2011 amenities used by time-share owners.

HISID will pay $60,000 to TRL. Time-share owners will be considered property owners and will purchase activity cards at the property-owner rate. HISID will not refund any of the $3,988 paid by TRL property owners during 2012 in excess of property owner rates for amenity usage.

TRL owners will be considered property owners with the same rights and privileges going forward, and they will not be told their taxes are delinquent for 2011 or 2012 nor will they be charged guest rate fees.

HISID is to accept the 2012 TRL assessment payment of $18,928 at the R-1 rate as paid in full.

Voting rights are back on the table, with a TRL representative able to obtain 56 ballots for the annual HISID commissioner elections, which will be cast by the board.

"They've basically told you take it or leave it," Bishop told the board, but noted that even though it sounds final, it usually never is, and often cases get settled even in the middle of court proceedings.

The three main differences between this offer and the last one is double the amount of cash payout, that the 2012 assessments are considered paid in full and that voting rights are back on the table, he said.

Board response was mixed, with most, except for Davis, rejecting the terms for various reasons.

Davis lambasted fellow commissioners for delaying settling the suit.

"Because of the board's indecision, we are looking at paying double what the other offer was," he said.

Chairman Ken Ames defended the amount of time he and other commissioners have spent on trying to negotiate a resolution.

Ken Brown objected to the new $60,000 payout request.

"There is not $30,000' worth of work done since two weeks ago," he said. "I will not vote to pay $60,000 of taxpayer money."

He also objected to giving 56 proxy votes to the TRL board.

"It's a power grab is what it is."

Davis said there is state code documentation giving time-share owners votes in elections, but Linda Graves said the particular statute is about the method of changing the selection of commissioners, not the general election.

"It's a one-time deal," she said. ..."It has nothing to do with our elections."

Bruce Larson was not willing to give up the $125,000 in assessments under the old 10 times the R-1 rate formula TRL paid them in the past. He advocated for allowing the court to decide.

After hearing several property owner comments, which ranged from taking the matter to court to settling and not worrying about TRL voting, the board voted unanimously to reject the offer. Then Davis made a motion for a counter-offer, later amended, to consider the time-share owners to be property owners, to pay $30,000, to accept the 2011 and 2012 assessment payments as paid in full for those years and to dismiss the request for voting rights "with prejudice," meaning they won't pursue it any further.

Bishop expressed concerns about the provision that TRL will not be told their taxes are delinquent for 2011 and 2012 because of how it might impact another assessment lawsuit currently in litigation, brought by David Bischoff, which is challenging the legality of the new Assessment of Benefits done in 2011.

"In settling, you basically say your assessment was done incorrectly, and that's part of their claim," he said. He added he doubted the board's attorney on the Bischoff case, Tom Kieklak, would approve of this counter-offer.

It was also pointed out that by accepting TRL's 2011 and 2012 assessment payments at the R-1 rate, the board was designating them as legally paying at that rate, even though the future assessment rate is still to be determined.

The counter-offer motion failed 3-2, with Graves, Brown and Larson voting nay and Ames and Davis voting yea.

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