A small victory in the ongoing legal case between the Helen’s View Homeowners Association and developers seeking to build on an HOA remainder parcel happened last week as a county Superior Court judge ruled to remove lis pendens, or a notice of pending litigation, from properties implicated in the suit.
Clark County Superior Court Judge Daniel Stahnke ruled in favor of the plaintiff, the Helen’s View HOA, releasing the lis pendens currently on property within the HOA as a result of the association’s suit against Holt Opportunity Fund 2013 LP, a developer looking to build a subdivision on more than 100 acres of land located in a remainder parcel listed as a part of the HOA.
The issue that the HOA was arguing is that the development agreement between Holt and the city of Ridgefield would violate a restrictive covenant regarding lot sizes. The agreement lists an average lot size of 4.6 lots per acre, far more dense than the existing neighborhood.
Previously, Helen’s View argued that the development would be in violation of an amendment to the HOA’s Covenants, Conditions and Restrictions (CC&Rs), which listed minimum lot size at .73 an acre. This was dismissed on account of the amendment not being unanimously approved.
Now the focus is on another restrictive covenant based on a platted covenant when the original Helen’s View subdivision was drawn up in the 1990s. Ironically, this covenant is slightly more restrictive, increasing minimum lot size to .75 an acre.
The issue in question on Friday, however, had to do with the lis pendens which has put a sort of asterisk on properties in the HOA that would keep potential home buyers from wanting to look at those lots.
Mark Erikson, attorney for the HOA, argued that previous case law showed a restrictive covenant like the one at the heart of the case had “no effect on title.” He brought up a case cited by Holt which stated that disputes over easements would affect title, however in that case easements were a clear interest in land, unlike the covenant.
“Restrictions on use, whether private or public, do not deprive the right to use,” Erikson argued.
The notice of pending litigation would alert potential buyers that a property’s title in question is subject to pending legal action. In terms of damages due to the notice, Erikson said that when the lis pendens was placed on the property owners there were lots in escrow pending sales.
“That lis pendens destroyed those sales,” Erikson remarked.
Kelly Smith, Helen’s View neighborhood homeowner, said Stahnke’s decision was “a step in the right direction” in the case. Smith has had trouble finding success in selling her property as the legal battle continues, and the lis pendens would send a red flag to potential buyers as to what they would be getting themselves into in purchasing the property.
“That being said, it’s only one of the parts of the issue,” Smith added, referring to the ongoing dispute on lot sizes.
There was a bit of confusion between Stahnke and Zachary Stoumbos, Holt's attorney, as to what was being discussed during the Friday hearing. It was the judge’s understanding that only the motion to remove lis pendens was to be heard, whereas Stoumbos had several other motions he wished to have discussed.
Ultimately only the order of lis pendens was argued, and four motions including one of final judgment on the covenant case, would be postponed to be heard on March 31 at 1:30 p.m. as agreed upon by counsel and Stahnke.
