Introduction
These excerpts address the following issues in the dispute: the HOA's 35-year slope maintenance history, homeowner restrictions on slopes, the French drain installation, reserve funds, and the HOA's change in position. All are taken directly from the official court transcript.
Q = Craig L. Combs & Vasko Alexander, Attorneys
A = Kent Berchiolli, Former Board President
A = Kent Berchiolli, Former Board President
Key Testimony
Did the HOA ever charge a homeowner for slope repairs?
Never. Kent was emphatic that no homeowner was ever invoiced or asked to pay for any slope work in the community's history.
Did the HOA ever pursue an individual homeowner to recover any cost for payment to slope repairs that were made by the HOA?
Never have we ever asked or got money from a resident to do anything in connection to the slopes. It never happened.
Page 58
How did Kent react when the board said slopes were homeowners' responsibility?
Kent called it "a radical change" and said the idea was "absolutely foreign" to him. He wrote to the board challenging the new position.
For them to be responsible for slope repair was absolutely foreign to me. I never heard that before.
This poses a radical change of what has been the precedence of this community for over 35 years.
Pages 65, 95
Was there any distinction between private slopes and common area slopes?
No. Kent testified there was no differentiation. All slopes were maintained the same way regardless of ownership.
And there was no differentiation between whether it's a private slope or one owned by the community, correct?
No. In my mind and in the mind of the community, at least the people I knew, the slopes were to be maintained and controlled by the community.
Page 30
Did Paul Elsesser know he owned his own slope?
No. Paul Elsesser challenged Kent's position that slopes were the HOA's responsibility. Kent responded by showing Paul that his own slope was deeded to him. Paul had no idea.
I reminded Paul, Paul, are you aware of the slope behind your house is yours that leads down to the street? And he said, No, I don't think so. And I said, Well, it is; it is your slope, so those trees on the slope behind your house are your responsibility under your thinking.
Pages 82-83
Were homeowners allowed to maintain or modify slopes?
No. Homeowners were not permitted to plant, modify, or even climb on slopes without HOA permission. They had no control over the sprinkler systems.
Were the homeowners permitted to modify or change any of the plants that were planted on the slopes?
No.
Were homeowners permitted to turn off sprinklers?
No. They had no control on sprinklers.
Pages 35-37
Was slope drainage the HOA's responsibility?
Yes. Kent confirmed that drainage on the slope side of the retaining wall was the HOA's responsibility, and the community paid for all water supplied to the sprinkler systems.
Did maintenance include drainage of the slopes?
Well, to a degree it did, of course, because usually that would relate to a sprinkler problem... So drainage came into it.
But if the water was on the other side of the wall where the slope is, that water is the HOA's responsibility, correct?
That's the way I knew it, yes.
And who pays for the water?
The community pays for it.
Pages 30-32
Did the HOA have reserve funds allocated for slope repairs?
Yes. Kent confirmed the HOA always maintained reserve funds for slopes. Sandra Comouche's email from April 28, 2023 confirmed $98,000 was available in reserves for fences and slopes.
[Vasko Alexander reading Sandra Comouche's April 28, 2023 email] "Once we have a comprehensive analysis of the slope, we can proceed with repairs. Reserves for fences and slopes has $98,000 in it. So money is available. May not be liquid as some of it is in CD's."
Having reserves for the slope was not anything new to me. I always thought we should have it and did have it.
I was surprised maybe at the amount of it, $98,000, which is probably more than usual for slopes, but there was always money available for repairs to slopes.
Pages 40-41, 57-58
Did the HOA maintain all slopes in the community, including private ones?
Yes. Kent confirmed the HOA treated all slopes as community responsibility for 35 years, regardless of whether they were on private property. No homeowner was ever asked to pay for slope work.
So when you say maintain the slopes, what is included in your definition of maintenance of slopes?
Replacing plants maybe that needed replacement, filling in bare spots; sprinkler coverage, making sure that the sprinklers covered properly and that they didn't overwater the patio of the homeowner below. It was pretty much a constant job maintaining that.
Pages 28-30, 37-38
Did Kent know about the French drain installation at Unit 139?
No. The 2019 French drain installation was news to Kent. He confirmed Bill Katz supervised the installation and said he doesn't think he would have recommended a French drain.
Do you have an understanding that in 2019, a French drain was installed at unit 139?
That's an interesting topic because when this recent runoff occurred, I called the treasurer and she said to me, Oh, that's where it happened before. And I said, What are you talking about, because I had no knowledge that it ever happened.
Pages 37, 45-46, 76-77
How many slopes are in the community?
94. Kent testified there are 94 slopes in the community and the sprinkler system crosses property lines. Turning on sprinklers for one home waters several slopes.
There's 94 slopes in this community. We have a lot of slopes. And we had a sprinkler system that crossed property lines. In other words, when the owner put in the sprinkler system, he did not just put one for this home and one for this home. If you want to turn on the sprinklers, probably it would water several homes, several slopes.
Page 29