See the 11-page RMA legal opinion [0] (900KB PDF)
A newly acquired legal opinion says the Rancho Murieta Association cannot on its own stop using member dues to support the cable system, the RMA announced Thursday morning. The opinion is in response to an effort to gather proxy votes to make the RMA stop assessing unwilling members for cable services.
"The governing documents cannot be amended to remove the basic cable charges from the regular assessment (without the written agreement of [land owners and developers], and there is no reason to expect that they would so agree)," says the opinion, which was announced at a press conference at the RMA Building. "Such actions by the RMA would constitute a breach of the Mutual Benefit Agreement and would likely provoke a legal challenge."
But the opinion doesn't rule out the possibility that "some alternative arrangement ('Plan B') might exist that would be agreeable to RMA and to the [land owners and developers] as a modification of the MBA."
"I don't want to give these three [land] owners on the North a feeling that they have some leverage because of this because they don't," said RMA President Jack Cooper. "But it's time to sit down and talk. It's time to say what can we do that would be good for our association and help you? ... We want to look at all options to relieve the board of the business of running a cable system. Right now it is legally impossible, but it can be legally possible and, with dialogue and cooperation between Rancho North and the association and PTF and the Concerned Citizens people and the fair choice people, we can all work together on this. This is not the end of the road, but it clearly tells us what we have to do."
"We've known for a long time that there were some significant legal implications that needed to be looked into. ... This document kind of puts that all together in one document that explains a lot of different dimensions," said General Manager David Stiffler of the legal opinion.
Reflecting the opinion's belief that it's "highly questionable" whether the RMA could operate cable as a voluntary offering, Cooper said, "Everybody could go dish. We'd still have to get the 29 bucks a month because it's a common area as much as that road out there. Whether you use it or not, you have to pay for it."
John Weatherford, an organizer of the drive to make participation in the cable system optional, said Thursday afternoon that he hadn't had a chance to read the opinion and wasn't prepared to comment in detail. "It's just another legal opinion as far as I'm concerned," he said.
Cooper said the 11-page opinion, by Mary W. Filson of Berding & Weil, the RMA's law firm, will be mailed to members Monday.
"Everybody needs to know the truth, what the real facts are," he said. "As far as the board is concerned, this is what we must follow. There's no choice here. ... What it tells you is we can't do anything with cable -- nothing, zip -- without the consent of the Rancho North Properties [developers]. ... We're not trying to sell anything. The public has to know the truth. ... Then they can draw their own conclusions."
The MBA is a plan for the build-out of undeveloped property on the North owned by the Pension Trust Fund for Operating Engineers and developers for the Retreat and Residences of Murieta Hills projects. The agreement was signed by PTF representatives and RMA officials. It recorded in 2004 and its terms apply to any subsequent land owners.
In 2005, the RMA board, with new directors who did not like the MBA, got a legal opinion on the legality of the agreement [0] at the request of members of the Rancho Murieta Development Concerned Citizens Committee, which opposes current development plans. The opinion, also produced by Berding & Weil, found the MBA to be a valid and legally binding agreement.
Cooper called the cable opinion "very thorough," but said it doesn't preclude other interpretations, adding, "If someone wants another opinion, fine. But we're not going to pay for it."
The legal opinion lists the Cable Television Agreement of 1989, the current CC&Rs and the MBA as the controlling documents for the operation of the cable system.
The MBA continues the obligations established in the Cable Television Agreement. Provisions in RMA CC&Rs and the MBA "require that basic cable charges be paid by RMA members as part of the regular (dues) assessment." The opinion repeats an earlier finding by Berding & Weil that the cable system "constitutes an association common facility" and its maintenance and management cost must be included in RMA dues.
The opinion states that the MBA closes a loophole in the Cable Television Agreement and obligates every RMA member and every Rancho North lot to pay RMA for basic cable service.
All the options for what the RMA calls Plan B -- selling or leasing the system, or contracting out its operation -- are still there, but developers and the PTF would have to be involved in the process, Stiffler and Cooper said.
"Plan B now has to be revisited because it's changed," Cooper said. "What the board hopes to be able to accomplish is to put together an ad hoc committee of talented people not dominated by the board but with a board member on it certainly. ... People who represent a cross-section of our community and knowledge with respect to cable television and the history of it and moving forward."
He said the committee would advise the board on the direction it needs to take.
"What channels we get doesn't determine the quality of homes, but it certainly creates political mayhem," said Cooper. "The hot button in Rancho Murieta, and justifiably so for years, has been cable television."
Recent coverage: Effort to make RMA cable voluntary hits the streets [0] (April 27, 2008) ... Cable fight heats up as RMA board shows it's split on the issue [0] (March 19, 2008)