08-05-2014, 03:45 AM
quote:The background here is that Frank Commandador on the Board of Directors of Fern Acres Assoc endorsed Hunt.
Originally posted by Fredrick Karstens
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It appears that Candidate Pueo has created a fiction of not only her contributions to the Fern Acres community, where she lives, but also to the Puna community at large via a post she recently made on the FernAcresAssociation Yahoo group.
Pueo posted that she was also running and claimed she had helped the for formulation of FAA.
There were comments discrediting Pueo's statements.
On Aug 1, Commandador rescinded Hunts endorsement.
Pueo had to go back to 33 year old court documents to prove her statements.
Here is the statement released by Frances Pueo to the Fern Acres Association yahoo group list. The attachments Pueo refers to are not in this post obviously. However if anyone has an interest, you can request them from Pueo at PUEO4PUNA at GMAIL dot COM. This is a long statement; however, I did not want to summarize or edit for fear of changing the meaning and context.
STATEMENT:
I agree with Frank (Commandador)that this forum should not be used as a political platform. However, I do feel responsible to provide a response to the questions about the legitimacy of my statements regarding involvement in the early Fern Acres Association development. Following is my response with attachments. Going forward, if you have additional questions, please email me personally and I will respond individually rather than respond to the group. Mahalo.
As we are all painfully aware, this election is a critical one for all of us. There are many issues that will be brought before the new County Council that will affect our health, our land and water, our air and our livelihood. I know you are not taking this lightly.
I posted an invitation to vote for me as your County Council representative and there were some issues brought up that I can address now that I have the court documents and the deteriorating paper documents.
Background
Thirty-three years ago on February 23, 1981, I put an offer on Lot 7261 in Crescent Acres on Hibiscus Road, this is the same property in the subdivision now calling itself Fern Acres. I was then known as Frances S. Adler before my name change. On June 2, 1981, my property went through Security Title Corporation as Crescent Acres subdivision. (See attached document-_).
My criteria for purchasing land on the Big Island was that,
1) It had to be free simple agriculture land;
2) No covenants/associations;
3) Clean of any liens and covenants/associations;
4) Electric hook-up was available, (The property was advertised with electric access).
Fern Acres Association and Crescent Acres confusion.
Sometime around 1984, a group calling themselves Fern Acres Association filed a class action suit for road mandatory maintenance dues on property on record known to me as Crescent Acres. The class action suit was brought by Fern Acres Association against itself for the purpose of implementing road maintenance fees. The class action suit against one’s own association was to alleviate the issue that a complete list of property owners in the said area was not known and individual property owners could not be contacted for the implementation of mandatory road maintenance fees for Fern Acres subdivision.
Please imagine that you purchased a property in a specific subdivision and then another subdivision’s association was trying to assess fees on your property. Wouldn’t you question it and try to research it until you knew exactly what was going on? At that time there were no computers as we have now, so my research relied on the paperwork I had and going to various offices for answers as to what Fern Acres Association actually was. When I asked about, “who and what is this Fern Acres Association”, in the Crescent Acres subdivision, the responses were that they did not know.
Fern Acres Association initiates a class action suit against itself
Sometime during 1984-1985, when I became aware of the sub-division court case, another property owner (Feb 19, 1985), filed a memorandum to the plaintiff law suit:
1) ……that each lot owner be notified by mail as to the contents of the suit…..
2). The court reviewed the association’s by-laws to help ensure that they are properly structured to carry out the functions of road maintenance and the setting of fees and collection.
The defendant then listed the association’s by-laws for review with additional concerns.
I am a firm believer that when people who are willing to come together in discussion and compromise, we can avoid costly legal court proceedings. Unfortunately as a property owner, my concerns about the language in the by-laws went unheeded. Because of that, mother and I felt it necessary to bring out our concerns through the court system as defendants in the already active class action suit initiated by Fern Acres Association.
On Feb 20, 1985 my mother and I filed a Memorandum to modify the by-laws for Fern Acres Association for the purpose of clarifying the language and to ensure that the future governing body of Fern Acres Association would be guided by fair regulations and clear language. It was equally important to us that all property owners being known on property records be notified that the group calling themselves Fern Acres Association (not Crescent Acres Association) was requesting through the courts for mandatory road maintenance fee. This would ensure each property owner was given the opportunity to voice their concerns or not. The court sided with Fern Acres in allowing the Class Action suit to proceed, without notifying individual lot owners.
On Feb 19, 1987, in our last memorandum, we noted there were still five outstanding concerns in the Charter of Incorporation and the By-laws of Fern Acres. We acknowledged the improvements, but there were still the five concerns that we felt would be issues in the future if not addressed now. The court documents are attached and you are welcome to read what we have outlined through the courts for change. Or you may contact me if the website does not allow attachments. Pueo4puno@gmail.com
As an example, one of the concerns we had was Fern Acres’ By-laws (see attached) Art. 11, Section 4, concerning membership in the association status, “The Board of Directors by affirmative vote of two-thirds of all the members of the Board, may suspend or expel a member with cause, and by a majority vote of those present at any regularly constituted meeting.”
This is a provision so imprecise as to be subject to potential manipulation by any future Board in future times. The “cause” of which this section speaks could be unfairly interpreted, the targeted member could be unjustly expelled, and his only remedy would be so time-consuming as expensive as to be worthless, and only long after the action taken by the expelling Board has been accomplished in fact. The section should be eliminated completely.
In the case of members of the association who do not pay their assessments, the better remedy is that of lien placement rather than suspension or expulsion. Placement of a lien against a delinquent owner would be much more decisive, more productive and would not be so radical as stripping an owner of his vote and voice in realty which he still owns.
Again, imagine that you are a property owner experiencing a loss of income and became temporarily delinquent and you were stripped of your rights in the association?
Another example of a change we proposed had to do with removing the ability of the Fern Acres Association to foreclose on a property. Can you imagine giving that ability to any association?
My summary to the Court:
Your Honor we agree that the roads should be kept up and that group action must do it. We agree with the opinions of the Supreme Court of Hawaii and the Third Circuit Court in the Paradise Case that the means of carrying this out must be fair and that an association receiving these strong powers must be “fairly structured” to use these powers.
As was done in the Paradise Case, the faulty parts of the Charter and By-laws mentioned above should be corrected so the court can then issue its order granting assessment and lien powers.
Now is the time to “fairly structure” the plaintiff, to ensure proper use of these important powers, and to avoid future trouble because of flawed basic documents. Clarity and fairness now will avoid trouble and litigation later.
Your Honor, I have called no witnesses because they are not needed here. The documents speak for themselves. Everything I have objected to is in black and white. Most of the provisions in these basic documents are fair and good and well-considered and for the best, but the five flaws we oppose are there. They are subject to misuse and to mischief in future times by less excellent persons than plaintiff’s present directors. They should be corrected now by the plaintiffs so the court can grant the powers the plaintiffs asks and needs.
Your Honor, the roots of myself and my mother are here, here on the Big Island, and here on this land we have bought and on which we hope to live for many years to come. We have appeared in this case not for meanness or for reward but out of principle. We wish to make sure that the rules we will live by here are fair and proper, and that they will benefit us and all other owners, now and to come.
Conclusion:
The reason for my delay in addressing this sooner to the Fern Acres Group was that in Jan 1988, we lost most of what we owned including my personal court notes and court documents when the Kaiwainui Marsh/Canals overflowed into our home which our neighbors and other residents experienced. So to obtain proof of my involvement in the class action suit, I went down to the court house to obtain copies.
My Crescent Acres now Fern Acres property was purchased over thirty-three years ago. My reason to join as a defendant in the class action suit was to ensure that whatever the outcome, we would all benefit from that day forward with fair rules to all.
I hope this address some of your concerns, review the documents provided and may this finally rest so we can go onto more important and critical issues before our community.
Respectfully Yours,
Frannie Pueo