Olathe homeowner battles HOA over landscaping
Four years ago, Jim Hildenbrand was ready for a change.
His kids were grown, his father had died, and he wanted to be closer to his mother. So he shut down his architectural consulting business in the Quad Cities in Iowa and bought a three-bedroom home in the Avignon Villas subdivision in Olathe.
But instead of settling into paradise, he says, he landed in purgatory.
For months, he fought the homeowners association over the placement of his satellite dish. He accrued tens of thousands of dollars in fines 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. And what started as a dispute with the HOA over a landscaping project that featured a long, low accent wall has cost Hildenbrand more than $200,000 in legal fees.
The case went to trial in Johnson County District Court earlier this year. Hildenbrand lost that round, and the HOA wants the wall taken down. Now, he awaits a decision by the Kansas Court of Appeals.
It’s a high-stakes battle, and the losing party could end up paying the legal bills for the other. With the HOA claiming more than $160,000 in expenses, a loss for Hildenbrand could ultimately cost him $400,000 or more — more than his house is worth.
“I thought in my career I’d come across just about every walk of life,” Hildenbrand said. “But this group takes the cake. These are the most hateful, mean-spirited people I have ever seen.”
Talk like that is absurd, say current and former HOA board members, who use words like “friendly,” “compassionate” and “lovely” to describe their neighborhood. Hildenbrand, they say, has no one to blame but himself because he failed to follow the rules.
“We’re not the Gestapo,” said Kevin Drake, who was on the board when the lawsuit went to trial. “We try to work with everybody in this neighborhood. But we have to enforce our deed restrictions.
“This individual was not going to stop with just putting in the wall. Next would have been a koi pond, or he would have put some playground structure or something up. We had to say no. You knew the rules when you moved in. If you don’t like it, you’re free to move someplace else.”
In the month since The Kansas City Star published a series on homeowners associations, readers have continued to share stories of struggles with their HOAs. The Star’s series found that homes associations wield far more power than homeowners realize and that some actually torment the residents they’re supposed to support.
Hildenbrand was among many who spoke out about what they said was bullying and abuse of power by their HOAs.
The Avignon Villas subdivision comprises 153 homes near 118th and Greenwood streets in Olathe. Homeowners pay dues of $185 a month for lawn care, snow removal and use of a clubhouse and pool shared with the adjacent Avignon Apartment Homes. Hildenbrand’s home, built in 2009, is appraised at $386,400.
“I get people who stop, who don’t even live in the neighborhood, ring my doorbell, and ask me who designed my landscaping — they love it,” he said. “Yet the HOA says that my landscaping is damaging property values.”
Hildenbrand was required to post an $85,000 cash bond to cover the HOA’s legal costs to that point after he lost his lawsuit in Johnson County District Court.
“So I’m real close to being $300,000 out of pocket,” he said, “over a landscaping decorative accent wall that goes around the side and into the front of my yard, which all of my neighbors find beautiful.”
That’s not the point, current board president Trish Jacobs said.
“We just want him to comply. All we want is to have the case be over and for him to be like 150 other people in the community,” she said.
“We are not bullies. We are anything but.”
Hildenbrand said his battle with the HOA started the day he bought his home in April 2012.
He said he submitted the required paperwork for a satellite dish even though he legally didn’t need to.
“I knew the federal laws inside and out on satellite communications,” he said. “But I thought, new kid on the block, you don’t want to rock too many boats.”
The HOA repeatedly denied his request, he said, demanding that he put the dish on an 8-foot pole in the middle of the backyard. Neither he nor his neighbors wanted it there, he said.
When he moved into his home in May 2012, he said, he told the installers to put the dish on the side of the house, behind the air conditioning condenser. After the movers left, Hildenbrand said, he stayed up half the night unpacking.
“And at 8:05 the very next morning, I get a phone call from the HOA management company telling me I had vehicles parked in the driveway, which was a violation, I had a satellite dish on the side of the house that was a violation, I had a St. Francis statue and a blue ceramic flower pot in the landscaping, and that I was going to be fined unless I removed them immediately,” he said.
For two weeks, he said, he received phone calls every morning telling him he was in violation. After that, he said, “I kept getting letters from their attorney.”
Hildenbrand hired his own attorney to submit a petition to the Federal Communications Commission. The FCC ruled in his favor, and the HOA eventually dropped the issue. Hildenbrand then asked the HOA board for reimbursement of his legal fees, which he said were about $3,000. Board members say the figure was inflated. When the board refused to pay, Hildenbrand sued.
In the meantime, Hildenbrand had hired a landscape designer to help him come up with a plan for a landscaping project.
But Jason Opheim said when he submitted the plan to the HOA, the subdivision’s builder — who at the time was running the HOA for the developer — said he would not approve anything until Hildenbrand had paid all the fines for his violations.
“They held my request hostage for more than a year,” Hildenbrand said.
Finally, he said, the HOA property manager sent him an email saying his project had been approved. Hildenbrand called Opheim and told him to get to work.
Hildenbrand said they did the backyard first, installing a tiered garden to highlight the shrubbery at different levels, along with an accent wall. But as soon as the work began in the front yard, he said, “it was like a hornet’s nest from the HOA and their family members driving and walking by with cameras.”
He said then-board president Don Blehm told him the HOA had no record that the project had been approved. Blehm told The Star that the only approval had been for some work in the backyard and that Hildenbrand had made unapproved modifications in even that design. Blehm also said Hildenbrand completed the front yard first, which Hildenbrand denies.
As the work progressed, Hildenbrand said, the HOA’s attorney kept sending letters ordering him to stop. Then the HOA filed a countersuit against him, claiming that the landscaping project would lower property values and that “the subdivision’s aesthetics and ambiance will be harmed as a result of plaintiff’s ongoing and continuous violation.”
Blehm told The Star that Hildenbrand, like all residents, received a copy of the HOA’s governing documents when he moved into his home.
“He initialed every page of the covenants,” Blehm said. “But he never had any intent to follow the rules. He’s going to do what he wants to do.”
Opheim said he’d never come across such strict enforcement of HOA regulations.
“This was crazy to me,” he said. “I couldn’t comprehend why they were going to the degree they were going to over landscaping, just beautifying the property.”
At the two-day bench trial, a real estate agent who had previously sat on the HOA board testified that the landscaping was gorgeous but “over the top” and there was no way it would have been approved.
Hildenbrand argued that the highest point of the wall, which runs from the front to the back of his house, is only 18 inches tall. And, he noted, landscaping guidelines that the developer provided to homeowners contained illustrations of accent walls and said decorative objects such as statues and bird baths in a landscape bed were a way to enhance the yard’s appearance.
Drake acknowledged that some lots have retaining walls but said they were necessary to prevent erosion.
“We told Mr. Hildenbrand, you can have a retaining wall if needed but you can’t go all around your property with a wall,” he told The Star. “But he only needed a retaining wall after he changed the elevation of his property.”
Hildenbrand said the HOA was selectively enforcing the restrictions. He produced photos of other homes that had statues and flowerpots in their landscaping, even though he was cited for those things.
Indeed, Drake acknowledged at a court hearing that he had violated the restrictions by having a red, blue and green gazing ball on his back patio for two or three years — while he was on the board.
In the end, the district judge decided that there was no evidence that the HOA’s Architectural Review Committee had seen the full set of landscaping plans. He ordered Hildenbrand to submit the drawings to the committee.
When he did, the committee approved some items but rejected the accent wall. Hildenbrand said removing the wall would cost more than $40,000 and destroy many of the plants. That’s about what he paid for the project.
He appealed to the state appellate court, and a three-judge panel heard the case in July. At the hearing, the HOA board agreed to drop the fines, then topping $40,000, to keep the legal process moving.
Neighbor v. neighbor
Hildenbrand said that while his dispute with the HOA has turned some residents against him, “there are many neighbors who support me.”
Several dropped by his house recently and talked of what they said was overly strict and inconsistent enforcement of rules.
At board meetings and on the HOA’s online site, they said, residents have repeatedly been asked to turn in neighbors for violations and told that if they do, their names will be kept confidential.
Connie Morris said the day she moved into her home in 2013, a neighbor came by with a petition saying Hildenbrand should be allowed to keep his landscaping. She signed it.
But she said she thinks her support has made her a target of the HOA.
After moving in, she got a violation notice for a small wrought-iron bench in a landscape bed in her front yard.
“They said I could only put it in the back or on the side, with ARC (architectural review committee) approval,” she said. “Or I could put it on my front porch. I said, ‘Wait a minute. When I put it on my front porch, you can see it more clearly than you can when it’s in the landscape bed.’ ”
This year, Morris said, she butted heads with the HOA over a flowerpot she’d had on her front porch step for three years.
“Same flower pot, same design, same flowers, year after year,” she said. “This year, they saw it and said I had to move it down into the landscape bed because the porch steps are not a part of the porch.”
HOA president Jacobs told The Star that the guidelines are the same for everyone and that she is working with Morris to resolve the problem. She said she told Morris she could leave the pots out through the summer, then move them once the flowers die.
Andrea Mosher said Hildenbrand’s case has pit neighbor against neighbor.
“Because I supported Jim in his lawsuit, I was told numerous times at board meetings and in person that I needed to shut up because I was wrong,” she said.
Mosher eventually moved out.
“It’s the worst place I’ve ever lived,” she said. “Dictatorial. Bullying. You’re not free; you’re constantly under their control, their demand, their whim. They not only drive around, but they walk through your yard, they take pictures of your yard to compare pictures from one walk-around to the next walk-around to make sure something’s not different.”
The irony, resident Melvin Woods said, is that Hildenbrand’s landscape seems to be exactly what the developer envisioned.
“If somebody would ask me what landscape in the neighborhood would most closely follow what the developer wanted, I would say Jim’s,” said Woods, a retired dean of Pembroke Hill Middle School. “It’s got rocks, it’s got trees. And if you look at the little islands and the front entrance, it’s identical. I’m thinking, ‘Where are these people from?’ ”
‘You’d have anarchy’
Board members and their supporters paint a much different picture of Avignon Villas. Indeed, when The Star arrived at Jacobs’ home for an interview, 25 residents were waiting inside.
They talked of community spirit, neighbors helping neighbors, street parties, potlucks, wine-tasting events and fundraisers. They said their dues haven’t increased in 10 years and they have a healthy reserve fund for major projects or unexpected expenses.
“We developed a ladies’ night out once a month, we have a ladies’ luncheon once a month, we have a men’s breakfast once a month, we have two bridge clubs, a book club, we have a Bible study that out of 153 homes there are 32 participants,” Jacobs said. “We used to meet in my home; we now have to go to the clubhouse because we’re too big. This is who this community is.”
Homeowner Steve Salem said restrictions are necessary for an HOA to be successful.
“When you have 153 homes in an area, if you allow everybody to pick out one guideline that they don’t agree with and ignore it, you’d have anarchy,” he said.
Marlin and Karen Stanberry said they moved to Olathe in 2007 from a Texas community that didn’t enforce restrictions.
“When we moved here, one of the things we insisted on was that they have guidelines,” Marlin Stanberry said. “We are willing to give up a little bit in order to maintain quality.”
Drake said the restrictions have kept home values “phenomenal.”
“There’s only one house for sale right now, and it’s listed at $457,000, which is over $100,000 more than what I paid for my house eight years ago,” he said.
Michael Harrington said most of those in Avignon “moved into this community for a purpose.”
“We liked the way it looked; we liked the guidelines,” he said.
He noted that there are only a handful of home models and exterior paint colors to choose from.
“There’s not a lot of choices, but we like that,” he said. “Instead of a lot of choices, we picked a choice neighborhood.”
Hildenbrand said he wants a nice neighborhood as well.
“I don’t want that broken-down, rusted old car or somebody changing oil and letting it run to the curb or a broken-down camper or boat sitting outside,” he said. “I’m for HOAs as long as they’re structured to where they’re reasonable, fair and proactive for the community — not just proactive and one-sided for board members.”
He said that when discussing his case with others, one question often comes up. Why doesn’t he just move?
“I’m not letting that playground bully dictate and control my life when I’ve worked so hard to be successful and I’m not doing anything but beautify my property,” he said. “So I made the decision, no, I am not backing down. And they did not anticipate that. Then they just dug in.”