Amendment 5
In Nov 2022, an invalid amendment to the CC&Rs was filed with the Washington County Recorder by Evelyn Oberg, a Dixie Springs resident. This amendment would have encumbered every lot in Dixie Springs with new, relaxed conditions and restrictions. Such changes would likely harm property values.
Among other sections, this “Fifth” amendment intended to disband the ACC corporation to prevent it from enforcing the CCRs. The ACC attorney advised that the amendment had fatal legal flaws. He advised the ACC to continue to function as before.
On January 13, 2023, the through its attorneys the ACC sent a letter to Oberg demanding that Amendment 5 be removed from county records. Oberg responded by filing suit against the ACC to have a court validate Amendment 5.
This lawsuit proceeded for over six months costing both sides tens of thousands of dollars. In August, the judge granted a Preliminary Injunction in favor of the ACC. The injunction required the removal of Amendment 5 from county records. Without such recording, the amendment is invalid. The judge specifically stated that all affected parties must comply with the CCRs as they existed prior to the recording of the invalid amendment. In short, the judge validated the existence of the current CCRs and the authority of the ACC to enforce the CCRs.
Below are the legal documents associated with the lawsuit and the preliminary injunction.
Links to Legal Documents
1/12/2023 Letter from Attorney to Lot Owners on Amendment 5 Validity
Application for Preliminary Injunction
Opposition to Preliminary Injunction
Response to Preliminary Injunction Opposition
Attachments to Response to Preliminary Junction Opposition:
Opposition to Protective Order
Preliminary Injunction Granted
COURT DECISION RE: CCR AMMENDMENT 5, 12/19/2023
Dixie Springs has experienced turmoil over the past many months. Today a judge in the Fifth District Court resolved the major outstanding legal issue of a court case central to this confusion. With that resolution, the community has a path forward to reduce animosity and confusion. We hope residents will take this opportunity to return civility and order to our community.
The developer of Dixie Springs encumbered all properties with Covenants, Codes and Restrictions (CCRs). All property owners are subject to the same CCRs which are intended to preserve the character of the neighborhood and property values. CCRs form a legal contract with Dixie Springs lot owners.
A while ago some residents tried to amend the CCRs to relax both enforcement and restrictions. Unfortunately, that effort caused division within the neighborhood. After over two years, a CCR amendment (A5) was filed with Washington county in November 2022 by a representative of some A5 proponents, Ms. Evelyn Oberg. A5 was recorded with the county recorder’s office against all 1390 lots in Dixie Springs.
Soon thereafter, on advice of counsel, the ACC challenged Ms. Oberg about the A5 amendment process, stating that it appeared the necessary requirements had not been followed. The ACC is legally obligated to enforce the CCRs as written. The ACC asked Ms. Oberg for proof that she had followed the proper CCR process.
Rather than provide proof, Ms. Oberg filed a lawsuit against the ACC last January. Ms. Oberg’s pleadings admitted that the required process had not been strictly followed. Nevertheless, she asked the court to declare A5 valid based on various legal theories, including a request that the judge either ignore or rewrite the CCR requirements to favor Ms. Oberg’s actions. After 12 months of pleadings, Judge Eric Gentry today declared that the failure to follow CCR procedures required him to invalidate A5.
Amendment 5 now has no legal effect on Dixie Springs properties. Legally, the CCRs and the ACC are the same as they have been before the fifth amendment was filed. The ACC will continue to enforce the CCRs for new construction requirements and subsequent property change violations.
Your volunteer ACC board members sincerely hope you will support them in their legal obligations to the community. Please contact the ACC if you have any questions. We hope we can get back to a polite and friendly community.