Rockery Wall Lawsuit Summary Judgement Hearing

The July 16th SOA Attorney Legal Disclosure Letter contained the following update with regard to the Rockery Wall lawsuit:

“Plaintiffs Motion to Strike Certain Affirmative Defenses Relating to Statutes of Limitations and Repose, Defendants’ Motion for Summary Judgement and Somersett Development Company’s Separate Motion for Summary Judgement were heard on July 15th, 2019. The Judge took the motions under submission and a written opinion is expected within the next two to four weeks”.

The Court order that set the above referenced Hearing and the resulting Hearing Minutes (as filed in Court records) may be viewed via the following Links:

Order to Set Hearing

Summary Motions Hearing Minutes

Note that the Hearing Minutes are not overly informative as to what was presented by the various attorneys, only a chronology of what transpired during the two and a half hour Hearing. However, it is safe to say that they simply argued their previously submitted motions to the Court, which may be accessed via the following links:

Motion to Strike Certain Affirmative Defenses Relating to Statutes of Limitations and Repose

Defendants’ Motion for Summary Judgement

Needless to say, the Courts ruling on the Summary Judgment motions will have a significant impact on the case moving forward. If the Court finds for the Defendants (Somersett Development Compant et al.) and issues a Summary Judgement in their favor, will that essentially end it for the SOA?, or will an appeal be in order? Same for an unfavorable ruling against the Defendants. Hopefully, the Court will indeed issue its opinion in the next two to four weeks.

For additional background information, see the previous SU post of June 19th, 2019 entitled:   Rockery Wall Litigation Update (5)

July 24th SOA BOD Meeting

Following is the final Agenda for the July 24th SOA Board of Directors (BOD) Meeting. Meeting starts at 5:30 PM at The Club at Town Center. The BOD Meeting Packet supporting the meeting is also available on the SOA website at www.somersett.net under the SOA/Committees & Meetings tab.

July 24th BOD Meeting Agenda

Details associated with meeting agenda items, as derived from the BOD Meeting Packet, follow:

SOA Committee Reports:

4.c. Communications – Recommended approval of SOA website enhancement proposal from D4-Advanced Media (see item 7.f. below). Requested $10,000 be budgeted for website maintenance in 2020.

4.e. General Manager Report – The General Manager Report contained the following entry regarding the SOA/SGCC Water Facilities Committee: “The Committee met on July 18th and agreed to get cost proposals for preliminary work needed to determine if the potential well location near the pond at the ninth hole is a viable option”.

Editorial Note: This implies that the drilling of a new well is being contemplated, which has not heretofore been discussed at a Board meeting. This raises the following questions as to its purpose: 1) To replace an existing water source ? 2) To provide additional water for golf course maintenance or other use? 3) Who will use the water from the new well? and 4) who pays for the evaluations and cost proposals?

Financials:

5.c. 2018 Audit – In addition to the monthly Treasurers Report, the BOD Meeting Packet contains the draft 2018 Audit Report issued by the SOA Auditor Hilburn and Lein, CPAs. The Table of Contents from the report may be accessed via the following link:

SOA 2018 Draft Audit Report Table of Contents

Readers who are interested in the financial details contained in the report may access the BOD Meeting Packet as previously noted above.

Old Business:

6.a. Legal Updates – Regarding the Rockery Wall lawsuit, the July 16th SOA Attorney Legal Disclosure Letter advised that a hearing was held on July 15th in which the Defendant’s (Somersett Development Company, et. al) request for a summary judgment was heard as well as the SOA’s motion to strike the defendant’s statute of limitations and repose defenses. A written opinion from the Court is expected within the next two to four weeks.

6.b. Easement Access Appraisal Proposal for Ventana Ridge – A proposal from Valbridge Property Advisors in the amount of $4,500 to appraise the worth of an easement access through SOA property as requested by the Ventana Ridge Developer.

New Business:

7.b. Trail Patch and Root Barrier Proposal – A Request for Proposal generated by Padovan Consulting LLC for asphalt patching, root removal and root barrier installation along portions of the Silver Willow Trail, Sierra Canyon Trail and Somersett Parkway Trail.

7.c. Scott Valley Ct Ditch Cleanout and Erosion Control Proposal – A proposal from EPS in the amount of $25,738 to clean out approximately 430 ft of drainage channel and construct a 350 ft Rock Wall with a 350 ft rip rap buffer and fiber trench on uphill side.

7.d. Ratify Boards Decision to Dissolve the CSC – At the June 26th Board meeting the Board voted to dissolve the Community Standards Committee. This over the objection of Board Member Roland who questioned the legality of voting on an issue not specifically identified on the Agenda. In publishing the meeting minutes, this website quoted the NRS statute which appeared to validate Mr. Roland’s position. So what is this agenda item about? Perhaps to properly identify it and revote (validate) on their previous action.

7.e. Revised Expense Policy – At the June 26th Board meeting the Board approved two single sourced proposals in the $20K range. A homeowner commented that this was not in keeping with a recently approved SOA Expense Policy which stated that projects over $12K should be bid out. Therefore, the Board should either adhere to the policy or change it. Hence the proposed revised Expense Policy that increases the suggested amount for competitive biding to $25K. A copy of the revised policy may be accessed via the following link:

Expense Policy SOME.0023.01

7.f.  Website Enhancement Proposal – A proposal from D4 Advanced Media in the amount of $3,222 for SOA Website Updates.

7.g.  Back Nine Trail Speed Control Device Survey – A tabulation of approximately 120 responses to four questions (along with some supplementary comments) related to a request that speed reducer devices be installed along the Back Nine Trail road. This for the protection of children. However, the tabulated responses contained within the Board Packet are essentially meaningless as published, as the four questions were not identified.

Water Management Advisory Committee

At the June 26th open SOA Board of Directors (Board) Meeting, the Board announced the formation of an “SGCC and SOA Water Management Advisory Committee”.

Having been appointed by the Board as an “Advisory” committee, its structure, methods and procedures will most likely differ from that of the SOA’s current Standing committees (e.g., Communications, Budget & Finance, Strategic Planning & Facilities). In this context, Advisory Committees are defined under Article III, Section 3.18 of the SOA ByLaws as follows:

“ADVISORY COMMITTEES: The Chairman of the Board, the Board, the executive committee or the President may from time to time appoint such advisory committees as it deems appropriate, consisting of directors or persons who are not directors, but such advisory committees shall not be deemed committees having the authority of the Board and shall not exercise any powers of the Board. Notices of, and procedures for, meetings of advisory committees shall be as prescribed by the chairman of each such advisory committee, and meetings of the advisory committees may be called by the Chairman of the Board, the Board, the executive committee, the President or the chairman of the advisory committee”.

The Board also approved a “Mission and Goals” document related to the Committee, the contents of which are admirable (if not overly general), and address needed activities. However, most represent common sense for each organization to individually accomplish and therefore, why the need for addressing by a “joint” Advisory Committee.

The Mission and Goals statements contained within the document are repeated below (in italics and unedited) along with SU comments. For those ‘fact checkers”, an exact reading of the entire document is available via the following link:    SGCC and SOA Water Management Advisory Committee

Mission

Rather than quote the entire mission statement from the document, it basically states that creation of the Advisory Committee is the best way “to assure both the short and long term ability to provide water to the Canyon9 and Championship course is managed in the best interest of both parties”

SU Comment;  What is in the best interest of one is not necessarily in the best interest of the other.  Hopefully this will not result in the Committee reaching funding concessions on the part of the SOA, as is feared by many due to the SOA’s deeper pockets, and past history.

Membership:

“Appoint a joint Advisory Committee consisting of at least two members from both the SGCC and the SOA. These members could but are not limited to Board members, staff and or outside experts”.

SU Comment: At the June 26th Board meeting in addressing formation of the Committee, it was not announced who its members were or who was the designated chairman. However, from Board comments, it was clear that SOA Directors Fitzgerald and Leto serve on the Committee. This leaves the question as to who the chairman is, who the SGCC members are, and whether or not it also consists of staff or outside experts. Since meetings have already occurred, it is fair to assume that they are known

Advisory Committee Meetings

“This Advisory Committee shall meet at least Quarterly to discuss and plan for the operational and governance of the water as outlined in the Water Rights Purchase document”.

SU Comment: It is assumed that reference should have been to the “Water Facilities Agreement” and not a “Water Rights Purchase” document, as this does not exist as a stand-alone document. Rather, it is the Water Facilities Agreement that outlines the operation, maintenance, cost allocations, responsibilities, warranties, etc. associated with the water supply system components, which utilize some, but not all of the purchased water rights. The purchased water rights are simply listed in an Exhibit to the Water Facilities Agreement. This goal statement skirts around the real issue, which is to assure that the SGCC is living up to its responsibilities under the Water Facilities Agreement. We certainly do not need a joint committee to assure that the SOA is living up to theirs. Also, will these meetings be open to owners, as are the current SOA Standing Committees?

“This Advisory Committee will meet annually during the first quarter every year to discuss the upcoming year as each organization begins to open their respective courses for play and their upcoming operating seasons.”

SU Comment: All well and good, except do we need a joint session to discuss how the SOA and SGCC plan to manage their respective golf courses for the upcoming year? What is the expected outcome of these discussions? Certainly, each organization does not need the other to tell them how to operate their respective courses.

Board Meetings:

“In addition the Committee will meet with the Boards no later than the first September of each year outlining their upcoming budget plans and expenses to operate the Water with the community for the golf courses”, also to “Develop and prepare an annual prioritization of maintenance and repair work with timelines and projected cost estimates to be presented to each Board no later than the end of September of each year. This will be used by both parties in the preparation of their annual budgets.

SU Comment: Sounds like something the SOA’s Finance & Budget and Strategic Planning/Facilities Committees would be doing anyway. As commented on above, the real issue here is to assure that the SGCC is budgeting appropriately for the repair and maintenance of the water supply system components for which they are responsible.

“In additional to an annual operating plan the committee will prepare a minimum of 3 but preferably a 5 year operating plan again outlining in detail upcoming projects in priority order with timelines and estimated costs for the use of both parties in the development of both longer range strategic plans as well as potential use in reserve studies”.

SU Comment: Good idea.

Water Rights

Prepare and recommend a plan for the use and optimization of the Water Rights that make up the Agreement between both parties such that the Water Rights as granted never terminate or revert back to their origins and are managed within the state, federal, and local laws and requirements as outlined in any and all water rights licenses or agreements”.

SU Comment: Also sounds like something an Advisory Committee could undertake. However, believe it would be beyond the expertise of SOA and SGCC Board Members and therefore, an outside expert (e.g., water rights attorney) would most likely be required.

SU Conclusion

SU’s opinion is that the Advisory Committee’s Mission and Goals statements are essentially platitudes, which do not directly address the real issue of concern. That is, will the SGCC live up to its obligations and responsibilities as required by the Water Facilities Agreement? This whole issue was prompted by the SOA paid for “Canyon9 & SGCC Water Supply Infrastructure Review” report, which identified short and long term replacement and maintenance activities estimated as high as $700K. The majority of which fall under the responsibility of the SGCC. This raised the question by many if the SGCC had the commitment and/or financial resources to meet its obligations. Hence the primary objective of the original Ad-Hoc Water Committee. Certainly, the SOA does not need the consultation, advice, permission or whatever from the SGCC to determine and live up to its responsibilities under the Water Facilities Agreement and to budget accordingly.

Bottom line  –  Perhaps rather than appointment as an “Advisory Committee” it should be an “Oversight Committee”, whose charter is to assure that not only is the SGCC living up to its responsibilities under the Water Facilities Agreement, but all other provisions of the SGCC Purchase (and Lease) Agreement.

For background information and additional details on this subject, see the SU Post of March 11, 2019 entitled “SGCC & Canyon9 Water Supply System Report” and SU Post of March 12, 2019 entitled “SOA and SGCC Water Facilities Agreement”

Reader comments, pro or con, on the preceding are solicited and welcome1