Jill Holtzman Vogel

SB 1489 Flops Before Even Reaching the Theatre

February 6, 2009 By LakeHolidayNews 6 Comments

SB 1489 is dead. It’s hard to say which was a bigger flop: SB 1489 or its 2008 special session look-alike, SB 6016. Both of these bills were nearly identical. The 2008 version stayed alive for only 4 days but did get through the Senate before it failed. The 2009 version, SB 1489, was introduced on January 22nd and stricken from the docket of pending bills by Vogel herself on February 4th – before it ever even came to a vote in a committee.

We’ve previously outlined why SB 1489 (like its predecessor SB 6016) was a bad bill. Had it become law, it would have allowed the deed to an owner’s property to be changed in unforeseen and undesirable ways without that owner’s consent. The amendment provisions in the deed itself would be ignored. The prospect that “in whole or in part, any provision of a declaration” could be changed would have manufactured uncertainty for tens of thousands of property owners in associations in every corner of the state. That uncertainty would have destroyed property values across Virginia, all in an effort to meddle in a lawsuit involving Lake Holiday, the Bemis Case. That case is now before the Virginia Supreme Court.

That SB 1489, like SB 6016, was nothing more than an attempt to tip the outcome of an active court case is beyond dispute. Shortly after SB 6016 died in the Virginia Housing Commission on 6/26/08, Bob Diamond and Todd Sinkins went back to work to try to change the law to tip an active court case in favor of their clients. Diamond represents Miller & Smith in the Bemis Case, and Sinkins’ firm, Rees Broome, was Lake Holiday’s initial counsel in the case before withdrawing.

The changes Diamond and Sinkins came up with are outlined in a July 1, 2008 memo to “Interested Parties.” This memo proposes even more far-reaching code changes than Vogel included in SB 1489. This proposal and Vogel’s bills share a central theme: to permit re-writing property deeds without the consent of owners Diamond’s description of honoring the terms outlined in a deed to amend it: “impractical.” We can apply Diamond’s reasoning thusly: If a small property owner has rights granted in a deed and Miller & Smith, one of the largest developers in the state, doesn’t like that, well, that’s simply “impractical” and the law needs to be changed. In his testimony to the Virginia Housing Commission, Sinkins characterized re-writing owners’ deeds over their objection as a “minor” change.

Diamond and Sinkins offer up this contradictory message acknowledging the impact of their proposal:

Although these changes may have an impact on the Lake Holiday project, we do not think that they can affect the outcome of the current litigation.

Perhaps they claim to believe that their proposed changes can’t affect the outcome because they know that an attempt to retroactively change vested property rights is unconstitutional and won’t pass careful scrutiny. It’s about time that Diamond and Sinkins learned the Code of Virginia is not their personal rule book to deliver the whims of their clients.

In late December, 2008 the Lake Holiday board met to consider the changes Vogel would later introduce in the Virginia Senate. Despite a dissent from 1 board member, the Lake Holiday board approved pushing the legislation to solve their “problem.”

Any claim that Vogel’s effort is anything but an effort to tip the outcome of an active court case doesn’t pass the laugh test.

Now that SB 1489 is dead, it’s important to reflect on the future. That future rests squarely with the Virginia Supreme Court. Backed by hundreds of years of Virginia property law and countless decisions from the state’s highest court (including 3 on point cases, the most recent of which was decided in January 2008), the Bemis plaintiffs take the position that their property rights and obligations are to be found – and can only be found – in a properly recorded deed in the chain of title to their individual properties. The Bemis plaintiffs are fully prepared to honor those deed obligations.

Lake Holiday has a history of collecting fees and dues far above those authorized by the applicable deeds. Its officers and lawyers have known about the unauthorized collection for some time. That creates a sticky and serious legal problem. To solve that problem, Lake Holiday would like to unilaterally change those deed obligations. That’s why Vogel, following the direction of Diamond and Lake Holiday, tried to change Virginia law to permit re-writing property deeds.

Fortunately, they failed a second time.

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Jill Holtzman Vogel and SB 1489: The Sequel To A Flop

February 1, 2009 By LakeHolidayNews 4 Comments

Most sequels are flops. That’s why good actors usually stay clear of them.

In June 2008, Sen. Jill Holtzman Vogel (R-27), supported by Sen. Richard Saslaw (D-35) and Del. Beverly Sherwood (R-29), introduced SB 6016, a bill that would have allowed re-writing property owners’ deeds without their consent. For very good reasons, that bill failed to become law.

At the 2009 session of the Virginia legislature that began on Wednesday, January 14th, Vogel returned with her sequel: SB 1489. As first introduced by Vogel, SB 1489 differs from SB 6016 by only 5 words. It’s noteworthy that while Saslaw and Sherwood publicly attached their names to last year’s SB 6016, Vogel alone is championing this year’s SB 1489.

SB 1489 is a bad bill. It’s a naked attempt by Vogel to interfere in active litigation, a point made clear by the headline posted on Vogel’s own website: “Lake Holiday suit spawns legislation….” (Like most of the images on our site, click on the image itself to get a better view.) It’s also unconstitutional on both state and federal grounds, because it attempts to retroactively change vested property rights.

The prospect that a property deed can be rewritten over the objection of owners introduces a degree of uncertainty for any buyer contemplating a purchase in a community affected by Vogel’s bill. Who would ever buy a property in such a community, knowing that the deed governing that property could be re-written? Vogel’s bill allows “in whole or in part, any provision of a declaration” to be changed. Current upheaval in the financial markets has made clear one thing: uncertainty destroys value. No buyer would touch any property in a community affected by Vogel’s bill because of the risk that the property deed could be changed in unforeseen and undesirable ways. The irony: if Vogel’s bill passes, it will destroy the property values of tens of thousands of Virginians, including those at Lake Holiday. Vogel may not devote a lot of thought to the impact on the property owners she destroys as she contemplates her move to a $5.5 million mansion. When a buyer spends that kind of money, changing “any provision” of the property deed isn’t tolerated.

It’s no surprise that Vogel’s bill will have significant unintended consequences on tens of thousands of Virginians, consequences that Vogel lacks the expertise to properly evaluate. By her own admission, she’s not an expert on property law. She also has a record of distorting the facts in a desperate attempt to make her case. For example, the articles on Vogel’s own website refer to her claiming there are “more than 9,100 property owners associations across Virginia….” According to Virginia’s own Department of Professional and Occupational Regulation, there are only 3148. One doesn’t command very much knowledge in the field of Virginia property associations when one doesn’t even know how many of them actually exist. If Vogel had a basis to claim there are more than 9100 associations that would be impacted by her proposed legislation, that is all the more reason why her changes should be carefully studied rather than hastily enacted into law.

Vogel’s own website refers to her observing that:

similar problems regarding the language in the act are likely to raise issues with each of the other 9,111 property owners’ associations throughout the state.

In the entire history of Virginia’s POA Act since it was first enacted in 1989, there have been only 3 Virginia Supreme Court cases that challenged whether the Act applied to a homeowners’ association, and 2 of those cases involved the same community. Vogel’s notion that the state is full of “similar problems” is a distortion that isn’t supported by almost 20 years of legislative and judicial history.

The most blatant of Vogel’s distortions – one she made to her own colleagues in the Senate – is her false claim that plaintiffs support her effort:

I explained that some of the plaintiffs [in the lawsuit against Lake Holiday Country Club Inc.] were overall good with it.

To be absolutely clear, the plaintiffs in the case are opposed to both of Vogel’s bills and are strongly against her effort to permit retroactively re-writing property deeds. In Vogel’s words, plaintiffs are not “overall good with it” as she falsely claimed. Through their counsel, plaintiffs in the case unambiguously communicated this strong opposition to Vogel herself. Following the original publication of Vogel’s statement, plaintiffs’ counsel demanded to Vogel that she publicly retract this obvious lie, but to date Vogel has not done so. Instead, she re-published the lie on her website.

Along with Vogel’s bad facts and distortions, in its present form SB 1489 contains an emergency clause. Since other associations aren’t storming to Richmond to fix a non-existent problem, the emergency to which Vogel refers must be that the plaintiffs in the case have filed their brief with the Virginia Supreme Court.

Curiously, Vogel’s web site includes 3 articles describing her efforts to introduce 2008’s SB 6016, but there’s no mention of that bill’s ultimate fate. SB 6016 failed to become law, a failure that took 4 days to come about.

At the June 26, 2008 meeting of Virginia’s Housing Commission, where SB 6016 met its fate, the only members of the public to speak on that bill were representatives and lawyers for the parties in the Lake Holiday case – the very case Vogel claims her bills don’t target.

One of the lawyers who argued in favor of SB 6016 at that meeting was Bob Diamond, an attorney from Reed Smith that represents Miller & Smith in the Lake Holiday lawsuit. Diamond is a member of the Presidents Club of the Community Associations Institute. Diamond has played an important role in pushing for the legislation Vogel has introduced. One wonders if Diamond is using his position to claim to have identified a non-existent problem and propose a fix solely to advance the interest of his client. His client is a party in the very lawsuit Vogel’s legislation targets.

If the history of sequels is any guide, the future doesn’t bode well for Jill Vogel and her SB 1489. As Entertainment Weekly observed on the subject of sequels:

…[S]ome are so ill-conceived, so cynically calculated, and so aggressively inept that they need to be called out and held accountable in the public square.

Every property owner in Virginia needs to work hard to see that Vogel’s sequel suffers a defeat more swift and resounding than her failed original.

To track the outcome of SB 1489, visit Virginia’s LIS System. To see the reactions of other Virginians, check out Richmond Sunlight.

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What Judge Prosser Asked Us To Do

June 30, 2008 By LakeHolidayNews 1 Comment

A short but interesting open forum kicked off the June 23rd meeting of LHCC’s board. The Bemis case was on a few minds. A woman named Pat, a member of the Alliance to Save Lake Holiday, encouraged owners to send out emails to support the passage of Sen. Jill Holtzman Vogel’s now tabled special interest legislation. Pat’s effort to support a side in the case was confusing to some audience members, because Pat, as a member of the Alliance, is on both sides. She, like every Alliance and Friends of Lake Holiday member, is both a defendant and a plaintiff.

Here are some excerpts of the discussion:

Property Owner: Which position are you supporting, the plaintiff or the defendant? Because from what I understand you’re both.

Alliance Member Pat: You’re asking who I’m with?

Property Owner: You’re telling us to go out and support “our” side. Ok, is it the plaintiffs’ side or the defendants’ side, because the way I understand it, most of the people here are on both sides.
…
Tom Wallace: You indicated that people are on both sides. There are people on both sides. We’re the defendants. The board is …

Property Owner: They have also cross-claimed as plaintiffs.

Tom Wallace: That doesn’t mean anything except…

Property Owner: It means that they’ve cross-claimed as plaintiffs so they’re on both sides.

Tom Wallace: Only a few of them.

Wayne Poyer: That has nothing to do with plaintiff, that’s a cross-claim. But you are technically correct. We don’t consider…I don’t think anybody who has made a cross-claim or counter-claim considers themselves part of the plaintiffs’ group.

Property Owner: Then why are they cross-claiming?

Wayne Poyer: Because that’s what Judge Prosser asked us to do.

Every member of the Alliance to Save Lake Holiday and every member of Friends of Lake Holiday has filed a cross-claim. That means every member of the Alliance and every member of Friends is a plaintiff against LHCC, the very organization they claim to be trying to save. The “Crossclaim against LHCC” for all Alliance members can be found buried on page 23 near the very end of their filing, and the cross-claim for all Friends members can be found in their pleading, “Cross Claim Against Defendant Lake Holiday Country Club Inc.” The cross-claims effectively repeat the arguments made by the original Bemis plaintiffs and make every party to the cross-claim a plaintiff.

These 2 groups include many former directors, every past president in recent memory, and every current director except Ken Murphy. In other words, in a case alleging that LHCC, run by its directors, has illegally collected assessments not authorized in the owners’ deeds, 10 of 11 current directors who are charged with collecting those assessments have adopted the position that LHCC has collected and is continuing to illegally collect assessments not authorized in the owners’ deeds. If that sounds ridiculous, it’s because it is.

Both current LHCC President Wayne Poyer and Tom Wallace, a former LHCC director, are members of the Friends group. When Wallace replied “only a few” in response to the comment about the position taken by current directors, he was wildly inaccurate. He also failed to mention that he himself is a plaintiff against LHCC. Was his distortion intentional? Or have pleadings been filed in his name that he doesn’t have knowledge of or agree with?

The exchange shown on the video triggered an email from a homeowner to Wayne Travell, the attorney representing the Bemis plaintiffs. The homeowner was troubled by Poyer’s statement that he did “what Judge Prosser asked him to do.”

This just didn’t seem right to me. I don’t know much about law, but it seems to me this is out of line.

Below is Travell’s reply:

Wayne Travell to Troubled Homeowner 6/27/08

Travell responded that “Mr. Poyer has never directly addressed the judge in open court nor vice versa.” He added that he does not believe the judge has engaged nor would engage in private communications with Poyer.

Wayne Poyer openly told his own neighbors at a public meeting that the judge in an active case asked him to take a particular course of action. Poyer suggested his status as a plaintiff was just a technicality. Former director Tom Wallace didn’t candidly acknowledge he is a plaintiff and distorted that 10 of 11 current directors share that position with him. Even Alliance member Pat failed to mention that she is a plaintiff.

How can homeowners separate fact from fiction with leaders like these?

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Jill Holtzman Vogel’s VA POA Act Amendment Is Tabled

June 27, 2008 By LakeHolidayNews 2 Comments

Sen. Jill Holtzman Vogel’s (R-27) emergency effort to amend Virginia’s Property Owners’ Association Act has been tabled for the special session still going on in Richmond. Her bill, SB6016 (our link is to a PDF redlined version of her bill provided to us by her office), Virginia Property Owners Association Act; reformation of declarations, was originally introduced in the Senate on Monday 6/23, where it was quickly referred to the Committee on General Laws and Technology. At a vote of that committee on Tuesday, the bill was reported out, or sent to the full senate. On Wednesday 6/25, the first vote on the measure in the full senate failed, but after a recess, a second attempt narrowly approved the measure by a single vote.

Following approval in the Senate, SB 6016 made its way to the House of Delegates, where it ended up in the Committee on General Laws. The next stop: the Housing Commission. And that’s where it stopped. Both we and others raised a number of concerns about the proposed legislation, perhaps the biggest of which was a serious question of constitutionality at the state and federal levels. The Housing Commission unanimously decided to table the bill for the remainder of this special session.

According to the Winchester Star, “Vogel repeatedly has stated that her bill is not related to an ongoing lawsuit against Lake Holiday Country Club Inc.” She continues to maintain this position. Bob Diamond, an attorney from Reed Smith representing Miller & Smith, and an attorney from Rees Broome, who happens to represent LHCC, were among the very few attendees commenting to the commission. Given their Tyson’s Corner offices are about 2 hours from Richmond, it’s an odd coincidence that attorneys for 2 defendants in a lawsuit happen to be about the only ones showing up to champion a bill that its chief senate patron said is “not related” to that lawsuit.

Start to nothing in 4 days. The legislative process is pretty quick in a special session.

We’ll discuss this further in due course.

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Jill Holtzman Vogel Rushes To Help Out Big Developer

June 22, 2008 By LakeHolidayNews 3 Comments

Virginia state senator Jill Holtzman Vogel (R-27) plans to introduce special interest legislation next week to amend Virginia’s Property Owners’ Association Act (POA Act) whose sole purpose is to affect the outcome of active litigation in Frederick County.

Vogel’s proposed legislation:

Was originally drafted by the attorneys for Miller & Smith, a big northern Virginia developer and one of the defendants in the lawsuit;
Is an attempt to get around 3 Virginia Supreme Court decisions over more than a decade;
Is inconsistent with well-settled Virginia property law and at odds with the state constitution; and
Will impact the property rights and values of owners in more than 9100 community associations throughout the state.

Vogel herself:

Is a public policy lawyer, and by her own admission to plaintiffs’ counsel, does not have the knowledge or experience to hastily tinker with property law;
Hasn’t had the time to fully evaluate the unintended consequences on property owners in more than 9100 community associations across the state;
Repeatedly masks her efforts as a small “fix” to a definition in the POA Act; and
Is trying to slip her legislation through in a very short special session of the legislature focused on transportation issues – a completely unrelated matter.

All that’s bad enough. What’s even more troubling is how she’s used the media to distort what’s behind her efforts and to distort how the plaintiffs regard her inappropriate meddling in active litigation.

A Timeline To Vogel’s Legislation to Bail-Out a Big Northern VA Developer
Date	Event
1996-2007	Miller & Smith is a donor to Sen. Richard Saslaw (D-35).
?	According to Vogel, Saslaw encourages her to undertake this project and offers the story that his personal doctor asked him to help out. She commits to him to introduce the legislation.
6/4/08	LHCC announces Vogel would hold an “open meeting” to “discuss the Bemis lawsuit and its impact”, moderated by local attorney Mark Stivers, counsel for a group of defendants.
6/10/08	Wayne Travell, plaintiffs’ counsel, emails Mark Stivers and asks if he can attend.
6/12/08	After getting no response from Stivers, Travell faxes him a letter.
6/16/08	Travell receives Stivers’ response. The reply: Travell is not welcome at Vogel’s allegedly “open meeting”, all of which is well documented.
6/18/08	Travell informs Vogel by telephone conversation and emailed letter that he’s being kept out of her “open meeting”.
6/18/08 4:39 pm	Vogel provides Travell a copy of draft language she said had been written by lawyers at Reed Smith, counsel for Miller & Smith (a big northern Virginia developer).
6/18/08 6:00 pm	Vogel holds her allegedly “open meeting” and, according to newspaper reports in both the Winchester Star and NV Daily, commits to introduce legislation at a meeting whose announced purpose was to be a moderated discussion. According to a property owner at the meeting, in response to a question on the appropriateness of her intervention, Vogel said that the Virginia Attorney General declined to assist her office, citing ongoing litigation.
6/19/08 10:30 am	Vogel meets with plaintiffs’ counsel for the first time and acknowledges that she is not a real estate lawyer, did not understand the lawsuit and the POA Act, and that her first draft of the legislation was provided by lawyers for another party to the lawsuit. Plaintiffs’ counsel tell Vogel they are deeply troubled by her plan and urge her to stop.
6/20/08	Vogel tells the Winchester Star that the plaintiffs are “super-excited” by her efforts, despite repeated communications with plaintiffs’ counsel expressing they viewed her plans as inappropriate meddling in active litigation.

Let’s be absolutely clear. The plaintiffs are not “super-excited” by Jill Vogel’s efforts. They’re very troubled a sitting state senator would even contemplate introducing legislation drafted by 1 side of an active court case to attempt to re-write Virginia law in an area where she has acknowledged she lacks both experience and background, let alone publicly commit to doing so. She exposed her own lack of background when she described the POA Act as “almost 40 years old.” The POA Act was first enacted by the Virginia legislature in 1989, making it 19 – not almost 40 – years old. It’s a clear abuse of the legislative process when poorly informed legislators try to pass legislation to tip a pending court case that could, if enacted, end up having widespread, unintended consequences and upset well-settled Virginia law.

The Winchester Star reported Vogel said:

I don’t want to mess up what the plaintiffs otherwise want to gain.

That’s disingenuous nonsense. Wayne Travell, plaintiff’s counsel, in a face-to-face meeting, in phone conversations, and in multiple email messages unambiguously communicated to Vogel that the plaintiffs opposed her inappropriate intervention. After reading Saturday’s Winchester Star, Travell emailed Vogel to express that he was “shocked” at what he read. Of Vogel’s characterization of the plaintiffs’ position, Travell wrote:

Nothing could be further from the truth.

Vogel chose to interfere in an active court case. Her interference was prompted by the request of 1 side, not all sides, and was accompanied by strong and repeated requests by plaintiffs that she abandon her ill-advised plan. Those facts don’t square at all with her own statement that she is not trying to “mess up” the plaintiffs’ position in an active case. That is exactly what her legislation is all about: messing up 1 side for the benefit of the other, which just happens to be that of a big developer.

Vogel committed to proposing new legislation before even meeting with counsel for plaintiffs, so she could not possibly have understood what plaintiffs “want to gain” before deciding to intervene. She accepted draft legislation from the lawyers for 1 side. Despite learning before the allegedly “open meeting” that counsel for the plaintiffs would not be allowed to attend, she went ahead and held her meeting anyway. Later that same night, the lawyers that drafted her legislation called her to say that their own language wouldn’t solve their legal problems, so she’d have to come up with something else to fix their troubles. For a legislative session that starts on Monday, June 23rd, Vogel has been unable to provide a copy of her proposed legislation at this writing – late in the afternoon on the day before.

Local attorney Mark Stivers told the Winchester Star that he believes LHCC is a property owners’ association that falls under Virginia’s POA Act. If he really believes that, why is there so much effort spent to change the law? If the law is on your side, why do you need to change it?

Jill Holtzman Vogel is interfering because the law is clear and settled. And the big developer that Jill Holtzman Vogel has decided to help out doesn’t like that.

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No Serious Discussion Tolerated

June 17, 2008 By LakeHolidayNews 6 Comments

The news according to LHCC: a meeting, open to any property owner, will be held on June 18th to discuss the impact of the Bemis lawsuit on Lake Holiday. Mark Stivers will “moderate” the discussion.

A simple, polite request to offer an other perspective:

With the simple request unanswered, a renewed request sent by fax:

A terse reply, sent by regular mail:

The meeting is billed as a moderated, open discussion of the impact of the Bemis lawsuit. It will be just a one-sided, controlled series of speeches by Stivers and others to advocate their positions. When you have to lure people, including a state senator, to a meeting by promoting it as something it’s not and your views can’t withstand polite discussion, you’re on shaky ground.

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