An Olathe homeowner can keep his landscaping project that his HOA deemed “over the top,” a judge ruled Wednesday in a years-long battle that has racked up hundreds of thousands of dollars in legal fees.
Johnson County District Judge Rhonda K. Mason said the Avignon HOA treated homeowner Jim Hildenbrand unfairly when it denied his application for the project.
“I don’t think there’s any secret that this was a contentious relationship,” Mason said of the HOA and Hildenbrand. “The court finds that the relationship between the parties played a role in this application being denied.”
Mason also ruled, however, that Hildenbrand violated his HOA’s rules by failing to fill out the proper application before installing the landscaping project, which features a long, low accent wall running the length of his house. So the judge ordered Hildenbrand to pay a $25,000 fine to the HOA.
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Mason denied both sides’ requests that attorneys’ fees be paid by the opposing party. Instead, she ordered Hildenbrand and Avignon to pay their own legal fees. That means Avignon residents will be responsible for the HOA’s bill.
Hildenbrand told The Star that his legal bills surpass $300,000. Avignon board president Michael Harrington would not say what the lawsuit had cost the association.
Budget documents posted on Avignon’s online site indicate the HOA has spent more than $330,000 in legal fees since 2013. No other lawsuits are mentioned.
Wednesday’s ruling was intended to settle the lawsuit Hildenbrand filed against the Avignon Villa Homes Community Association in 2013.
“I hope this opens the doors for all homeowners to take a stand and fight for your rights, your integrity and your freedom,” Hildenbrand said after the ruling was issued. “It’s always been America’s dream to own property. And what I did was beautifying, not degrading.”
More than two dozen Avignon residents attended Wednesday’s hearing, most in support of the homeowners association. Harrington later declined to comment on the ruling or whether the HOA would appeal.
“I’ll reserve my comments for later,” Harrington said. “We’re still looking over the decision. I can’t speak on my behalf — it has to be a mutual comment from the board, and we haven’t had a chance to meet.”
Connie Morris, an Avignon homeowner who has tangled with the HOA over landscaping issues, said she was pleased with the judge’s decision.
“I think it was a just verdict,” Morris said. “The HOA should have put it to a vote of the homeowners as to the amount of money that was being spent on this lawsuit.”
The case is among dozens of lawsuits involving HOAs and homeowners examined by The Kansas City Star in a 2016 series on homeowners associations. The Star found that HOAs wield far more power than homeowners realize and that some actually torment the residents they’re supposed to support.
The Avignon saga began in 2012, when Hildenbrand bought his house and fought the HOA for months over the placement of his satellite dish. After he moved in, the HOA issued repeated citations for parking his cars in the driveway too long and placing a ceramic flower pot and a St. Francis statue in his front-yard landscaping. Then in 2013, as he installed the landscaping project, the HOA ordered him to halt it because he didn’t have approval. Hildenbrand contended that he did have approval. He sued, the HOA countersued, and the case went to trial in Johnson County District Court.
Hildenbrand lost that round, and the court ordered that the landscaping be removed. But in the ruling, the court said that Hildenbrand’s full landscaping plan had not been submitted to the HOA’s Architectural Review Committee. So the court stayed its order and told the committee to review the plan and make a decision on it.
Hildenbrand then submitted the full plan and the committee rejected most of it, including the work that had already been done. Hildenbrand disputed that decision and the court heard more testimony, then ruled that the committee had acted in “good faith” in denying the plan. Hildenbrand appealed the court’s decision, and the Kansas Court of Appeals heard the case in 2016.
The appellate court sent the case back to district court, saying the lower court had applied an “incomplete test” in determining whether the HOA acted in good faith when it denied Hildenbrand’s landscaping plan. The district court needed to decide whether the HOA had enforced its rules fairly in its denial, the appellate court said.
Hildenbrand had argued that he was singled out by the HOA and that it had treated him differently than other homeowners whose requests had been approved.
District Judge Gerald Elliott allowed Hildenbrand to conduct more discovery in the case. In the meantime, Elliott retired in January 2017 and Mason was assigned to the case. It went back to trial in October, and Mason said she would issue a decision on Jan. 31.
In Wednesday’s ruling, Mason said the purpose of an HOA is to keep a neighborhood up and prevent homeowners from doing something that would harm the community. She said Hildenbrand’s landscaping project did not damage the subdivision in any way. She read a message that one Avignon homeowner had posted last year on the HOA’s online site:
“I think it is time for the homeowners to vote as to whether we wish to keep spending our money on this litigation,” the homeowner wrote. “My objection to continuing is that the landscaping we are fighting is the nicest-looking in the entire neighborhood. And so all we are doing is trying to make a point rather than improving the quality of the neighborhood.”
Mason also said she reviewed email exchanges among some HOA board members and members of the HOA’s Architectural Review Committee.
“The court was a bit disturbed by some of the emails,” she said. The emails made it clear, she said, that HOA officials thought that Hildenbrand would not give in no matter what they did so they should just “toe the hard line.”
“If you’re toeing the hard line,” Mason said, “that doesn’t give an opportunity to be reasonable.”
Mason also noted that there were other violations throughout the subdivision that were allowed to continue, including a gazing ball on the patio of a board member.
“But for litigation,” she said, “that gazing ball would probably still be there today.”