HURRICANE — In November 2019, the Dixie Springs Architectural Control Committee filed a lawsuit against retired police officer Andrea Kaz and retired firefighter Steve Kaz for the height of a wall they built around their home.
The lawsuit was launched after Chris Howell, former president of the Dixie Springs Architectural Committee (ACC), approached the Kazes and told them that their wall was out of compliance.
The wall height is 12 blocks high and conflicts with the terms written in the covenant, conditions and restrictions defined by the ACC, which says that a wall should not be taller than 6 feet.
Paulette Schermerhorn, a resident of Dixie Springs, started a GoFundMe for the Kazes for the attorney bills that are piling up. She told St. George News the Kazes said they didn’t know about the restriction and immediately asked what they could do in order to come into compliance.
She said Howell refused to work with them and instead told them the ACC had “$70,000 in the bank, and I can bankrupt you.”
Afterward, she said Andrea Kaz went around with a questionnaire to ask the neighbors if the height of their wall was a nuisance and all the neighbors signed it saying they were fine with the wall.
Schermerhorn said she decided to speak up because everyone is too frightened of the ACC to stand up.
“I cannot watch them be singled out and tormented anymore. Whether you believe they are right or wrong, did it right or wrong, they have been singled out. They are the only ones who have been treated this way. They’re good people, good neighbors,” she said.
Dixie Springs first became a subdivision in 2018. While the ACC was never supposed to act as a homeowner’s association, Schermerhorn said over the last few years, the ACC has extended their powers so they can fine, lean or foreclose on a house.
“Which is freaking us all out pretty good,” she added.
Despite there being a new president of the ACC, Nancy Russell, who was elected after Howell resigned in May, the new group has continued with the lawsuit.
Schermerhorn said the Kazes aren’t the only ones with noncompliant walls in the neighborhood. Because of the topography, many have walls to make up for the difference in ground level, which is the case for the Kazes, who initially built a 6-foot wall but then found that people could easily see over their wall and into their backyard.
“You could see right over it, into their pool and their backyard,” she said. “They do a lot of animal rescue, and people could see over their wall, and the animals were not happy.”
On Thursday, the ACC signed a resolution letter pertaining to wall height, allowing a wall to be taller than 6 feet in areas of grade change.
Jeff Owens, the Kazes’ attorney, told St. George News he hadn’t yet heard if this resolution would change anything with their case.
As far as where they stand now, Owens said it’s not about the height of the wall.
“The question really is, from our perspective, is whether my clients are being targeted,” he said. “There are other walls throughout the community that are just as tall or even taller that have not faced any consequences. The restrictions have not been enforced at all.”
For this reason, he said he thinks they are dealing with a case of “selective enforcement” due to clashes in personalities.
“For some reason, the former president of the ACC had some sort of beef with my clients,” he said. “The wall is taller than is technically allowed, but you can’t just selectively enforce and enforce the rules only against those people you don’t like or only against some people and not others.”
He went on to add that the ACC has not gone after anyone else outside of the Kazes.
“They’re just being unfairly picked out of the crowd and targeted with a lawsuit that, frankly, is costing them thousands and thousands of dollars,” he said. “When you drive around the neighborhood, you can see walls that are higher than 6 feet all over the place.”
Russell, who was elected as president of the ACC on June 19, resigned on Monday. She told St. George News her decision to resign was due to an “incredible amount of harassment in the neighborhood.”
She then referred St. George News to the ACC’s attorney, Kimball Forbes, who told St. George News that the recent wall resolution is not connected to the lawsuit. The issue that was raised in the resolution pertains to retaining walls heights between two lots that are graded differently.
Forbes said the lawsuit is simply about the fact that the Kazes built the wall without the approval of the ACC, and then a year to a year and a half later added two feet onto the wall. Forbes agreed that there is slope on the Kazes’ lot but said it’s not between adjacent lots.
“If you look at a satellite image, you’ll see that that wall is up against a sidewalk or close to a sidewalk on the north side and the east side, and that’s along the street there, and it’s 8 feet,” he said.
Lawsuits like this are common among both ACCs and HOAs, he said, when a homeowner is asked to comply and refuses.
“Really the only option there is — other than possibly fining, which doesn’t do the job as well — is to ask the court to order the homeowner to follow the CC&Rs,” he said. “These particular homeowners were approached multiple times by the previous ACC, and they were written a letter, and the last time they talked to the previous ACC president they said, ‘See you in court.'”
The Kazes’ attorney has suggested settlement, he said, and the ACC is also hoping to settle the lawsuit, which would involve the defendants removing the top two feet of their wall and moving the wall back if necessary.
“They were initially asked to remove the top 2 feet and they refused,” he said.
Mike Greenhalgh, a Dixie Springs resident, former president of an HOA and a man who has spent his career assessing business operations, told St. George News that the ACC is set up as a nonprofit organization, and the trouble with the ACC board extends far beyond the Kazes’ wall.
Greenhalgh said Clarence Jolley, the man who wrote the terms for the subdivision, intentionally avoided having an HOA because he knew that was something many people didn’t want. Instead, he created the list of covenants, conditions and restrictions by which new homes would need to comply, which were ultimately put in place so homeowners could maintain the value of their homes. The ACC board was put in place to approve building plans.
“You have an organization here whose purpose is to approve plans, but instead they’re amassing this big bankroll by charging — it’s up to $300 now — $300 now per house that gets reviewed,” Greenhalgh said, adding that at the beginning of 2020, the ACC had around $70,000 to $80,000 in the bank. Money that could otherwise be used to enrich the neighborhood, he said.
“I don’t think you’re supposed to have that type of spare change to use like that if you’re actually considered a charity. That type of tax-exempt charity does not do these types of things,” he said.
Greenhalgh said the problem comes down to the board not having accountability to anyone.
“If I were to summarize the wall issue, it’s that you have an unregulated organization who’s taken it upon themselves to go after an individual family for really nothing,” he said. “There are so many other violations. In fact, they just appointed a new board member who has a wall that is 11 blocks high.”
Parties on both sides of the issue say there has been misinformation spread, especially on social media.
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