This series of posts on incorporation issues represents the author’s opinion based upon research and consultation with professionals experienced in this area. The posts aim to explain the political process and legal implications as we understand them and do not in any way constitute legal advice.
In Part 1, we noted that if an incorporation referendum made it to the ballot registered voters would be given a yes or no choice whether to incorporate CWL. We concluded there would be no vote on “plans”, no option to limit the city’s authority or exercise of power and no apparent way to prohibit the city from establishing a property tax in the first year.
However the city’s ability to exert its control would be limited by practical constraints that exist outside the bounds of an incorporation referendum. The proposed city in CWL would be subject to restrictions regarding what it would own upon its creation. Those limits are articulated in our Association covenants (in CCRs ) which “run with the land”.
Our privately owned community assets (the lake, streets, parks, reserves, etc) are protected from dedication to public use by our current covenants. (see article VIII ). They dictate that our common assets shall remain private and under the control of the Association. Our covenants limit the prospects of those who seek public ownership and wide open access to our community property.
Article VIII indicates no one in our Association has the authority to grant ownership of any of our common assets to a public body. Under the current CCRs this rule can only be amended by a majority vote of the lot owners in good standing - roughly 1150 affirmative lot votes would be required. Thankfully this a high hurdle built into our governing documents. It protects against political activists and/or self interested parties undermining the property rights of “the people” without majority consent. “We, the people” in this instance are the property owners of the association who have the greatest stake in how our lake, parks, streets and buildings are controlled.
So a prospective new city would basically own nothing upon incorporation. But that does not necessarily mean city officials would be content with their “shell city” and limited power. We’ll look at the potential for conflict and power struggles in the next segment.
Link to your current Covenants, Conditions and Restrictions (see “Amendment” on page 1; see also article VIII on page 8): http://www.candlewick-lake.org/document/246695covenants__conditions____regulations.pdf?20420
Randy Budreau