BY JOHN A. NAGY
SLI Reporter
Only dues-paying members of Seven Lakes West are entitled to vote in association board elections, Moore County Superior Court Judge James Webb has ruled.
The decision comes a year after a group of 10 property owners sued the association over what they claimed were election irregularities and improper votes cast.
“The plain and unambiguous language of the Association’s governing documents bar a ‘developer’ or ‘declarant’ from membership status, and consequently, from possessing voting rights in director elections,” Webb’s order reads.
But while the judge sided with the property owners who sued the association, he stopped short of ordering a new election to redo the 2021 board vote at the center of the dispute. He also left unresolved for now the matter of payment of legal fees.
“We’re good with the judge’s decision,” said Paul Brezinski, the lead plaintiff in the case and a Seven Lakes West property owner.
Brezinski was one of 10 Seven Lakes West property owners who sued the association in June 2021, charging that the board of directors election that year had improperly counted votes cast by developers that were ineligible to vote.
The original lawsuit sought to nullify the election results of two board members — Lois Eisel and Josh Davis — and appointment of a third board member, Tim Niewald. It also said the board had improperly appointed another director, Roberta Maness, but that complaint was dropped from the suit when Maness moved out of Seven Lakes West and resigned her seat.
Association board president Pat Zlotin read a statement from the board at its July 26 meeting.
“If the original complaint had been solely focused on voting rights, the board would have been able to resolve it without a lawsuit as they were already committed to investigating that issue,” the statement said.
“The board accepts the decision and will ensure that the ballots are only sent to members who pay dues. As mentioned previously, in 2021, the board followed past precedents and used the list that was prepared for prior boards for many years.”
At issue was whether several developer entities could vote in board elections. The board had said that those entities had voted in prior years. Brezinski and the others challenged their eligibility to vote after the 2021 election. In that election, according to the final court ruling, it was determined that 73 ballots had been cast by non-dues paying lot owners, “all of which were considered to have voting rights by the association.”
All but one of those 73 votes went to Eisel, Davis and Niewald. Subtracting those from final tallies, Eisel and Davis still would have won, but Niewald would have fallen to fourth place, behind Mick Herdrich. The board has broad authority to appoint members to vacant seats, but the association said on the 2021 election ballot that the third-highest vote winner would get the vacancy. Under that scenario, the plaintiffs argued, Herdrich should have been appointed to the vacant seat, not Niewald.
Jackson Wicker, a Raleigh-based attorney who represented Brezinski and the other plaintiffs, said the lawsuit accomplished what the plaintiffs had argued to the board.
“The association and the board fought tooth and nail for non-dues paying lot owners to have the right to vote,” he said, “and that has not been available to a lot owner since the inception of the community.
It should not be lost on anyone,” Wicker said, “that the board was not advocating for the right of dues-paying lot owners. They were advocating for the rights of non-dues-paying lot owners that did not exist under any governing document of the community.”
Zlotin said the board’s position was “based on the opinion of two attorneys (who) needed to do research into many documents and amendments going back to the beginning of SLW, which were not completed prior to the filing of the lawsuit.
“The board is vested in making sure that legal agreements are not violated. The judge has made a decision, and the board will adhere to it, even though it does disenfranchise some current residents who have a legal agreement, from many years ago, officially recorded in 2017, that they do not have to pay dues until the property is sold but they remained a member in good standing with voting rights.
“They will no longer be able to vote in director elections, per the summary judgment.”
From here, the judge’s order lays out that the board of directors must establish certain protocols to ensure future elections are conducted properly. So far, Brezinski said, the board has not reached out to him or other plaintiffs to sit down and talk through those procedures.
Zlotin said work on election protocols will occur after the board can develop a plan.
“As the board has just recently received the summary judgment, we have not had time to develop the appropriate procedures,” Zlotin said in a statement.
She said the board would work with Community Association Services, which manages operations with Seven Lakes West and maintains the database of lot owners. The board will share the election plan with community members, she said.
For the 2022 board election, Zlotin said the board hired a former director of the Moore County Board of Elections to count ballots, and three community members oversaw the process.
“We are going to ask the former director of the MCBOE to develop a ballot tabulation procedure,” Zlotin said, “to ensure that ballot integrity is not questioned for future elections.”
Contact John Nagy at (910) 693-2507 or john@thepilot.com.
