Monday, June 27, 2016

Talk To The Hand

The City recently ran afoul of the Dunwoody Homeowners Association, particularly the DHA board, when they translated Legal Advisement into direct action. This action constituted policy, new or changed, which cannot be done without public presentation and being put to a Council vote in full view of the public. The urgency was probably exacerbated by a lawyerly perspective magnifying risk and advocating what some see as an overabundance of caution. This action was taken in what most would call a heavy-handed manner.

The gist of the issue was potential legal exposure due to DHA Board and regular members serving on City boards that impact development. Think Zoning Board of Appeals and Planning Commission.

Reaction from the DHA was equally swift and well, fervent. Clearly the City had misstepped so a meeting was hastily called to be held on the morning of the 24th so the Mayor could take responsibility and members of Council who were available could air their opinions, at least those that fell outside of client-attorney privilege. While the City's attorney noted that Council could waive privilege no motion was made to do so. What could be gleaned from Mayor and Council comments was a universal agreement that the action previously taken was wrong but that on the underlying issue of conflicts of interest, real or perceived, consensus was lacking. The meeting also included the obligatory public comment periods offering greater insight into the underlying problem.

The actions taken by the City singled out the DHA leaving some to publicly question, in the Friday meeting and other fora, what makes the DHA special? Here, being kind, let us assume this is a somewhat rhetorical question and if you really want to know just ask any DHA member and they will wax poetic. And they would be correct. Many things, good things, in Dunwoody are credit to the DHA and at least one of Friday's commenters remarked: "Dunwoody Homeowners Association should be credited with making this City possible."

Prior to City incorporation the DHA provided a unified voice on matters that were often of greater concern in this most northwestern corner of DeKalb County than they were down in Decatur. This often concerned zoning and development which when too loosely coupled to the community tended more towards concerns around profits. Again being kind, the DHA was a self-organized group of concerned citizens who worked hard to ensure that significant consideration was given to community issues as development moved forward.

For years the DHA acted as the defacto local government in the Dunwoody area where zoning and development was concerned. Developers quickly learned that successful projects required more than hosting an open public meeting. It required presentations to the DHA and negotiations with their board. Without DHA board approval a developer would fight an unnecessarily difficult uphill battle. Developers did not unlearn this lesson nor did the situation change when the City was founded. Instead of the City being the sole or even primary arbiter of Zoning and Development this is what doing business in Dunwoody looks like to Developers:

In spite of attempts to characterize the DHA as just another community group comments made on behalf of the DHA in the meeting and elsewhere do little to counter the prevailing view. In fact they do quite the opposite. You cannot speak on the one hand about all the great things DHA has done in "negotiating" with developers, bragging about how special it is and has been, and then pretend it is just another HOA. The DHA will be no different to the local swim and tennis club when it behaves like the local swim and tennis club.

One tell of the DHA's high self esteem is the number of times "negotiating with the DHA Board" came up in public comment during the City's special called meeting culminating in a question, per rule rhetorical, lamenting that the Mayor and Council did not come to the DHA to negotiate with the Board regarding the conflict of interest the DHA presents. It almost seems that the commenter's issue wasn't just that the City acted unilaterally but that it did not seek prior approval by the DHA.

General consensus is the legal advisement resulted from a couple of poorly executed development efforts in residential areas. Bigger money and proportionally larger risk is to be found in Perimeter Center. An article in the Dunwoody Reporter on the DHA vs City matter claims:
The DHA was heavily involved in the recently proposed Crown Towers mixed-use development. DHA members met with developers several times and agreed to support the project in exchange for such promises as payment of a $760,000 "voluntary impact fee" to be used toward park space in the Perimeter.
Does not sound like a neighborhood HOA but at first blush looks more like an ordinary protection racket. And in what world is a HOA's support for a project valued at over three quarters of a million dollars? Since government is involved perhaps this price makes sense in a world where choosing between the HOA and serving in a City Zoning and Planning position impacts over two dozen individuals. That the developer pulled out claiming uncertainty regarding how the Council would vote further suggests that someone, somehow had set certain expectations later believed to be unattainable. All things considered the $760,000 price tag presented during "negotiations" may seem a bargain. It certainly looks as if a bargain was struck. Bartered HOA support is more than unseemly as even the mere appearance that money buys a specific outcome puts the public at risk given that our government is involved.

And it is our government. A local, accessible government. A representative government. A government charged with serving all the citizens of Dunwoody and responsible for enacting, applying and enforcing our local Zoning ordinances, doing so fairly and uninfluenced by outside organizations and ex parte negotiations. Dunwoody is one litigious developer and one non-profit HOA misstep away from a courtroom disaster. A disaster for which the HOA cannot be held accountable and whose cost the non-profit will not bear.

Though horribly wrong in execution the City is right to take action. The risk goes beyond mere money and legal liability. The issue is whether our City is led by a representative government accountable at the ballot box or hosts a pretend government that merely carries water for the board of a non-profit HOA.