Dear Harper’s Choice Residents,
The Columbia Speaks, CA Listens event on October 18th was, by all accounts, a success. Hopefully, the next time we do this (and we intend to make this type of forum a regular event), there will be more time so that we can have more in-depth discussions.
The Haven on the Lake wellness spa is on track for its December opening and the Hobbits Glen clubhouse/restaurant building is on track for a spring opening.
There has been an interesting, disturbing, and potentially game-changing development in the Symphony Woods/Inner Arbor arena. A well-respected land use attorney, with many years of experience in these matters, has looked closely at the perpetual easement which CA granted to the Inner Arbor corporation. He has concluded that the easement violates the terms of the 1966 Deed which is the basis for Columbia and the Columbia Association.
His reasoning is basically this: The 1966 Deed requires that CA only convey land to a public body for public use. It also gives all Columbia landowners a legal right to use and enjoy CA property in return for the annual assessment we pay to CA. The 2014 Easement to the Inner Arbor corporation (a private entity) gives CA no control over Symphony Woods, in perpetuity. In fact, it requires that CA “subordinate” its ownership interest in the land to the Inner Arbor Corporation. This means, for example, that if Inner Arbor borrows money and can’t pay it back, the land could go to pay the loan. This means that for all intents and purposes, the Easement is a “conveyance” of Symphony Woods to a private entity in violation of the 1966 Deed, which is the most fundamental of our governing documents.
If this interpretation of the Easement and the Deed are correct, it would be illegitimate for CA to have conveyed our most precious piece of Columbia’s open space to a private entity. If this is allowed to stand, it is conceivable that CA will make other such transfers of our open space land to other private entities and could lose control of any or all of them.
Regardless of what one thinks about the various elements being proposed for Symphony Woods by the Inner Arbor corporation (and I believe that there is plenty to be concerned about in that area), apparently control of this open space land must remain with CA…by law!
Jim Rouse clearly intended that Symphony Woods remain a park for Columbians to enjoy. The Planning Board is meeting on this issue on Thursday, November 20, at 7pm at the Howard Building in Ellicott City in the County office complex. If you would like to make your voice heard, you can testify then and/or you can send an e-mail to firstname.lastname@example.org.
I have created a website at which you can find all the pertinent documents, including the Original Deed, the Easement Agreement, Murphy’s Opinion, CA’s Attorney’s Response, and Murphy’s Response to the CA Attorney’s Response. Please go to www.alanklein.net/columbia.
Finally, there is a group in the Hobbits Glen neighborhood who are concerned about people speeding in areas where there are bad sight lines and kids playing. If you drive through Hobbits, please keep your speed down. If you would like to join the group that is looking into ways to get people to reduce their speeds, please let me know and I will put you in touch with them.
As always, it is my pleasure to represent you on the Columbia Association Board of Directors as your Columbia Council Representative.
Columbia Council Representative
Village of Harper’s Choice
Julia McCready says
I’m sure than Mr. Klein had intended to include this document, which is a legal response from CA’s attorney to the opinions referenced above,
Bob Fontaine says
Mr. Klein’s report was incomplete and therefore may be perceived by some as intentionally misleading. That is truly unfortunate.
Alan failed to mention that the letter he quotes in his report has been thoroughly debunked in a subsequent letter to the CA Board of Directors, where he sits as our Harper’s Choice representative. I understand Alan’s passion about the Inner Arbor Trust, but that passion does not make it okay to report known half-truths.
We should be informed about both sides of this argument so that we can make a fair and considered judgment. To this end, I am including below a “cut-and-paste” version of the memo sent to the CA Board and its attached legal opinion. The CA Board voted to make this document public nearly two weeks ago.
FROM: The Columbia Association Board of Directors
RE: November 5, 2014 Memorandum from General Counsel Sheri Fanaroff DATE: November 7, 2014
Attached is a memorandum dated November 5, 2014 from the Columbia Association’s General Counsel Sheri Fanaroff, entitled “Letter from attorney John Murphy regarding Inner Arbor Easement”. On November 7, 2014, the CA Board of Directors voted to release this memorandum to the public. However, disclosure of this memorandum is not intended to be and should not be construed as a waiver of the attorney-client privilege with respect to any other memoranda or opinions by or communications with CA’s General Counsel or outside counsels on this or any other subject.
￼￼￼￼￼TO: COLUMBIA ASSOCIATION BOARD OF DIRECTORS
FROM: SHERI FANAROFF
RE: LETTER FROM ATTORNEY JOHN MURPHY REGARDING INNER ARBOR EASEMENT
DATE: NOVEMBER 5, 2014
￼￼I have reviewed the letter from attorney John Murphy provided by Alan Klein regarding the
￼easement granted by CA to Inner Arbor, and find that Mr. Murphy’s conclusions are erroneous.
￼First, Mr. Murphy has concluded that the easement was a conveyance of property in violation of
￼CA’s Deed, Agreement and Declaration of Covenants. There are several reasons why this
￼conclusion is unsupported. First, the easement is not a “conveyance”. To “convey” property
￼means “to pass or transmit the title to property from one to another. . . . To convey real estate is
￼to transfer the legal title to it from the present owner to another.” (Black’s Law Dictionary) CA
￼did not transfer its title to Symphony Woods to Inner Arbor. Second, even if the easement were a
￼conveyance, Mr. Murphy has misread the provision of the Deed (section 5.03) regarding
￼conveyances to a public body. The Deed states that CA has the authority to convey property free
￼and clear of the obligation to pay the annual charge and of the rights of enjoyment of annual
￼charge payers if the conveyance is to a public entity. The Deed does not state that CA may not
￼convey property to any entity other than a public body. Third, the Deed specifically authorizes
￼CA to “contract with any corporation . . . for the performance of the various duties imposed on
￼CA” in the Deed, which include projects relating to parks, recreational facilities, amphitheaters,
￼theaters, galleries, playgrounds, walkways, landscaping and any and all other improvements the
￼board “shall find to be necessary, desirable or beneficial to the interest of the property, Owners
￼and Residents.” (Section 4.01) The easement agreement constitutes such a contract pursuant to
￼which Inner Arbor will develop a park with attributes authorized by the Deed. Similarly, CA’s
￼Charter gives CA the authority to “lease or sell . . . property . . . to any person . . . to be engaged
￼in providing . . . facilities necessary or desirable for the social welfare of the people of
￼Columbia.” (Section III(6))
￼Mr. Murphy also mistakenly concludes that Inner Arbor’s only obligation under the easement is
￼to develop Symphony Woods pursuant to the Concept Plan and that the easement “extinguishes
￼the rights of CA and the Columbia owners and residents in Symphony Woods”. In fact, the
￼easement specifically states that it is non-exclusive and that CA has retained rights of use for
￼itself and temporary licensees. The easement also preserves CA’s rights of control over
￼Symphony Woods. Inner Arbor not only is required to act in accordance with the Concept Plan,
￼but also must (a) preserve, protect and develop “Public Benefit Values”, which are defined in the
￼easement as scenic, open space, natural, educational and recreational values of importance to CA
￼and the citizens of Columbia, (b) not engage in prohibited uses specifically listed in the
￼easement, and (c) provide quarterly and annual reports on development and operations. CA also
￼may terminate the easement in the event of a default by Inner Arbor in meeting its obligations.
￼Last, Mr. Murphy concludes that the easement requires CA to subordinate its property interest in
￼Symphony Woods to any financing requested by Inner Arbor with the result that a default on a
￼loan by Inner Arbor would extinguish CA’s ownership interest in the property. The language in
￼the easement from which Mr. Murphy draws this conclusion actually states that CA will
￼cooperate with Inner Arbor in the execution of documents relating to financing, which may
￼include “consents, subordinations, non-disturbance or similar agreements or other documents
￼required by any financing or capital source . . . .” (Section 5(iii)) “Subordination” simply means
￼”an agreement to put a debt or claim . . . in a lower position behind another debt.” (USLegal) In
￼other words, if CA had an outstanding loan to Inner Arbor (which it does not), CA would
￼provide a document stating that the financing company making a loan to Inner Arbor would have
￼the right to be paid before CA. This document would not impart any ownership right in
￼Symphony Woods to Inner Arbor or the financing company.
￼In sum, there is no basis for an assertion that CA violated its Deed or Charter in granting the
￼easement to Inner Arbor.
Kirsten Coombs says
You posted this information 12 days after the Columbia Association voted to allow the CA attorney’s assessment to be publicized. Nowhere in your commentary do you mention Ms. Fanaroff’s opinion. Understandably, you don’t because it runs counter to your argument. Your reporting, which is actually commentary, is purporting to detail the events after the last CA meeting. Leaving out her opinion means that you are potentially lying, or at least misrepresenting the situation, to your constituents.
I find it odd that you are proceeding in this manner, given that you claim that the Inner Arbor Trust was conceived in secrecy. Your actions & words display a covert, secretive edge. You have decided you don’t like something so you will lie and mislead people.
Thank you for apologizing to Mr. Matthews for presenting his testimony to the Planning Board. As the President, he should be the voice for CA publicly. Once something is approved, he should champion that idea. I only wish that you could come before the PB to apologize for your mistake. These situations, unfortunately, demonstrate the lack of professionalism that you have brought to the CA board.
Alan Klein says
All of the relevant documents are at the following website:
Columbia’s Original Deed
The Easement between CA and IA
CA’s Attorney’s Response
Murphy’s Response to the CA Attorney’s Response
Please review and come to your own, informed opinions.