The sent the SHCA board via email October 23, 2020 the following after earlier attempts to get complete answers at the October 14, 2020 SHCA board meeting. My questions sought to bring transparency to the continuing issue as to the community's total unit count and developer control termination. I received a response from the board November 20, 2020. It fails to answer most every inquire below.

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"The board claims to have answered my questions related to unit counts and declarant control termination, on numerous occasions." I acknowledge they have responded to my questions. But I argue they have not answered the questions. 

 

Find below my written request for an answer (Note- the blue underline sections represent where, as of 11/26/21, additional information has come to light. Selecting the blue underlined section will display a summary of the update information.)  

 

I will assume it is not lost on SHCA counsel and the board, nor is it contested, Southern Highland’s original CC&Rs note 9,000 maximum units. A document asserting to amendment the CC&Rs, increasing this maximum number is recorded. On its face, it increases the maximum units to 10,400. But after much research and asking for clarification, I have found no evidence this amendment is anything other than an unilateral recording by the developer, one it appears was never adopted by the owners. I argue it is thus void and the maximum units is rightly 9,000. 

 

The opinion of an attorney, working from the AG's office at the time, asserts "...no grounds to consider the amended CC&Rs invalid in the absence of a legal challenge..". My attorney's and I believed this opinion was flawed and not controlling. We argued it wrongly referenced a statute of limitation (NRS 116.2117(2)). 

 

This decision of NRED not to pursue my complaints completely ignores a statute, stating in clear and plain language, "a declarant may not in any event increase the number of units in the planned community beyond the number stated in the original declaration..." (NRS116.2122).  (Nevada courts have since inexplicably ruled in mid-2021 any challenge to the Second Amendment cannot be accomplished because it is protected under a one-year statute of repose.)  

 

Clark County claims 9,564 units in SH. The count includes only permitted units. Permits expired, withdrawn, or closed are removed from the totals, per the county (see attached email string). More units than counted could be conveyed to owners who have yet to pull a permit. I ask for the most current unit count applicable to declarant control termination, per the association.  Not a budget number that is not reflective of the total unit count applicable for declarant control change. 

 

There also appears an issue of what constitutes something seemingly as simple as the definition of a “unit”. It is defined, in my opinion, to include more than only occupied single-family dwellings, as set out in the SHCA CC&Rs. Alternatively, it is defined as all “…physical portions…designated for separate ownership or occupancy” in Nevada statutes (NRS 116.093). The latter expands units to include apartments and commercial building, constructed or not, occupied or not. I see the latter as controlling. This apparently is not the position taken by the SHCA board? Counsel? I ask for an explanation. Owners are due an explanation. I ask for numbers- a quantitative and documented response with the change percentage the board considers correct.

 

All of the above was discussed with Rick Rexius, the previous board president, in detail, on several occasions in the past. I must assume counsel is aware. He should be. So why not just provide a clear explanation? If the board has been provided one, why not to all owners? If I am wrong, please explain why. 

 

Given my prior requests for an explanation, I must assume the board has long been aware of the above- in agreement or not. I have long asked for the numbers being used by the board and it defend/explain their applicability. They are numbers I believe the board should regularly and freely disclose to owners even if not specifically required by statute. If they have been provided then my deepest apologies, I am not aware. Please point to where and when. I do not believe I ask for too much given what is at stake.

 

If all this is a difference of opinion and/or my information is wrong, then let’s make it clear, be transparent, and get a definitive determination on areas we may disagree. Again, owners are due this."

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Mike Kosor

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sent via email October 23, 2020 to Olympia Management for the board.