Status of Alternative Root Resolution

Sparta /
04 Nov 2019 | 10:29

    I am submitting this letter for publication to further inform the Behind The Gate (BTG) members and all Lake Mohawk Country Club (LMCC) members of the status of my Alternative Dispute Resolution (ADR). The status was initially described in my letter published on 10/31 available at . Since then I have replied to the 10/25 letter from the Board of Trustees' (BOT) attorneys, Kelly & Ward, ending the mediation. My reply on 11/1 to the Trustees follows:

    The subject (of an) email to me from Kelly & Ward states that the Board of Trustees (BOT) is ending the mediation because it is "not the proper subject of ADR." (Alternative Dispute Resolution). The ADR policy states "6.3 The ADR provider will initially determine if the matter is subject to ADR." So, the BOT does not make that determination. It further states "2.5 Lake Mohawk Country Club (LMCC) must participate in ADR if requested by a Member." And it states "LMCC determinations to ignore governing documents or law are not discretionary and are subject to ADR." This ADR is about ignoring governing documents. So, for all these reasons it is not proper for the BOT to end the mediation process.

    The BOT also claims to have participated in the mediation in "good faith." Was it good faith to only agree to one mediation meeting in the eight months since I submitted the ADR? Was it good faith to stop communicating with me for the last three months? Was it good faith to agree in June to develop a BTG gate policy and now claim five months later that it is "not the proper subject of ADR"? I expected more good faith from our Trustees. Consider:

    1. Communications with BTG members. I requested that the BOT provide me an opportunity to communicate with the members to gain their input to the ADR process because the ADR was of major importance to them. I offered two example communication options. A restricted email option and a survey option. The email option was designed to eliminate inundation of members regular email boxes with unwanted emails. This was accomplished by establishing special LMCC email boxes using members physical addresses. It would work just like the USPS except communication would be electronic instead of by hand delivered paper. Hence, the claim that members regular email boxes would be inundated is false. I don't know why the BOT rejected the survey option or why the BOT did not suggest an alternative method to communicate with the members. I can only conclude the BOT just didn't want me to communicate with my fellow BTG members.

    2. Governing Documents. When people purchase property in LMCC they agree to our governing documents which require them to pay their equal share of taxes to cover LMCC expenses. The governing documents do not, however, provide for members to be put into a subgroup without their consent and be required to pay additional taxes to fund special BOT projects. Hence, the BOT violated the governing documents by forming the BTG subgroup in an unauthorized manner to fund the BOT gate system; a clear case of government overreach. In addition the BTG members were never given the right to approve BOT gate expenditures. Not only does this violate our governing documents it violates our common understanding of fairness.

    The BOT argues that "Properties in Sparta and Byram located between the West Shore Trail gates are subject to an annual charge to pay for the gates. Those properties are uniquely benefited by the gates and it has been the policy and practice of LMCC for a long time for those property owners to pay the costs, versus all LMCC property owners." As I remember from BOT surveys in the early 2000's, nearly half the BTG members voted against the gates. So for them, the gates are a negative benefit. In addition the gates also benefit LMCC as a whole by reducing cut through traffic. The fact that BTG members have been paying gate costs for a long time means that the BOT should have corrected this problem many years ago. The BOT and Gate Committee were notified of this problem in a 2005 email. The conclusion from these facts is that the BOT has been following an unauthorized policy of billing the BTG members for the gate costs and that unauthorized practice must STOP immediately.

    The ADR offered the BOT two methods to right this wrong. First, the BOT could develop a new BTG policy agreeable to all BTG members. This option is up to the BOT not me as the BOT claims. It is not my responsibility to develop a policy to correct an unauthorized billing of BTG members. My concern is that the current unauthorized billing of BTG members be stopped. Second, the BOT could refund the gate charges paid by the BTG members. When at our June mediation meeting the BOT recognized there was a major problem with the lack of an authorized BTG policy and volunteered to develop an authorized BTG policy, I thought we were headed toward a solution. That did not happen and we are now left with just mediating the refund of the gate charges.

    The ADR policy states "6.8 The ADR provider shall propose a resolution or render a decision within 45 days of receiving the matter unless both parties consent to additional time." I now wait for the mediator to continue the mediation process on the refund of the unauthorized gate charges paid by the BTG members or to propose a resolution. In the meantime you might encourage the Board to continue the mediation.

    Jim Root