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                                     Legal Update 9/14/12

Dear Neighbors,

As most of you know, a request for a declaratory judgment on the question of whether the Club’s members have special rights of access to the Clifton Park Trust property was filed on June 6, 2012. The Club asked for a 30 day extension to respond which we did not oppose. Instead of responding to the issues themselves, the Club responded with a motion to dismiss, carefully avoiding the merits of the dispute. That motion misconstrues our position while trying to argue that we, despite being Trust beneficiaries, have no standing. It attempts to confuse, complicate and unnecessarily enlarge the process of answering the simple question we have presented to the court.

Our response, filed Sept 14, begins by clarifying that “This case is about the Clifton Club Company’s attempts to effectively strip Clifton Park homeowners of their right of private access and enjoyment of Clifton Beach, essentially converting private beach property into quasi-public property.  The dispute in this case is over the interpretation of a deed of trust granting beneficiaries the “sole use and benefit of” certain property in the Clifton Park Allotment, including access to and enjoyment of Clifton Beach.  The language of the deed of trust at issue is unambiguous and undisputed.  Thus, the simple issue presented to the court is whether non-beneficiaries under a trust have the same rights to use certain property as do beneficiaries, where the trust specifically and exclusively grants such rights only to beneficiaries.”

Our response affirms that the plaintiffs have legal standing and also addresses all the attempts to twist and confuse this action with an uncommonly clear and simply written legal document.

Let’s all keep in mind that misinformation is the fuel that keeps conflicts burning. An accurate understanding of the facts is the foundation of any problem solving process.

Sincerely,

Arthur Dueck,  Todd Gilmore, William Keller and Nancy Binder



                   Legal Update 8/20/12

Hello Neighbors,

After our request for a declaratory judgment was filed, the Clifton Club had 30 days to respond. They requested a 30 day extension, which we allowed without objection. The Clifton Club has now filed a motion to dismiss our case on technicalities as their answer, which we will answer in 30 days. All this does is needlessly delay resolving this dispute.

Their motion substantially misstates the facts of the case. It states we aim to make their deed “null and void” and that we are trying to modify the terms of their deed, both of which are incorrect. We seek a judicial answer as to whether all of the non-resident club members (currently at around 230) are equal to Park residents with respect to Beach access rights.  In the Clifton Park Trust Deed, only sub lot owners of the Park are mentioned and the Clifton Club Company’s subsequent deed cannot modify the Trust. There is interestingly no mention of the Clifton Club in the Clifton Park Trust.

The facts of this matter are that the historical position taken by the former Clifton Park Trustees was that all access to the Beach granted to the Clifton Club’s members was under the control of the Trustees as a form of licensure for access. They understood that the Clifton Club’s deed of 4 lots and the Trust did not give the Club a legal right for access for all of its members. Its deed was written identically to all the other deeds of the Park (accept allowing it to function as a social club) granting the Clifton Club a right to Beach access equal to and no different from that of any other lot owner. Earlier Trustees and Club leaders were in agreement on this view.

The current Club leadership has taken a different view claiming it has a right to Beach access for all of its members derived from their new interpretation of the Club’s deed. If this newly claimed right is accepted, then the Trustees would lose the ability to set a fee for the Club members Beach access and the Club would have the right to pay only an assessment based on the value of their lots according to the Trust formula while allowing as many members they wish to have Beach access or picnic table reservations.

This is a situation where one of these two positions is legally correct. There is no legal middle ground allowing partial interpretation or an “a la carte” approach. That kind of solution can only be found through discussions between the parties.

Our view has been that the former Trustee interpretation was correct and should be continued. We oppose the change in interpretation which will occur if we are silent. That change would more than double the number of beneficiaries in the Clifton Park Trust and allow unlimited Beach access for the Club’s members. That change should only be made if confirmed by a formal legal judgment.

Our opposition to this change in interpretation of the Club’s rights was repeatedly discussed with the current Trustees and the current Clifton Club’s leaders in order to find an amicable solution. There clearly was no need for this change as the Club was historically well cared for by the Trustees through all its difficult times during which it was in essence subsidized by the Park residents as the Club’s cost for its access for members was reduced.

Another misrepresentation being made is about our intent. We keep hearing that we are out to “close the Club”. We have repeatedly stated that we are not and have worked with Club leadership and their representatives for a long time to find alternative means to resolve this conflict prior to filing the request for a declaratory judgment.

Lastly, the Clifton Club Company is asserting in court that the Trustees and all Park residents should be sued in this case.  The Wallace et al v Clifton Land Company case in 1915 which went to the Ohio Supreme court for review and other case law, supports that a dispute between two beneficiaries of this Trust need not involve more than the opposing beneficiaries. The Trustees were not sued as they are simply servants of the Trust. We will certainly follow the courts direction in this matter but wish the Club had moved towards resolution rather than unnecessary delay and enlargement of this process. That step will not change the outcome and will only lead to a need for a more prolonged reparative process.

We have and continue to remain open to discussion on how to find a less formal solution, but are not prepared to simply give up our deeded home owner rights.

Sincerely,

Arthur Dueck,   Todd Gilmore,   Nancy Binder,    William Keller

                    
                      Legal Update 6/8/12

Hello Neighbors,                   

Many of you have received a letter outlining the very sad situation we have found ourselves dealing with. For many months, residents of Clifton Park have met with both our Trustees and the Club’s leadership to try to resolve the question of beneficial ownership of the Trust that the Club’s assertion of equal ownership rights for its members has provoked.

An impasse has been reached and a legal action called a declaratory judgment has been filed this week. It simply asks the court to rule on the question of what rights of access to the common land (Beach) the Trust deed and the deed of land purchase grant the Club.

Prior Trustees and the plaintiffs believe that the access for the Club’s members was and should continue to be through a voluntary yearly license agreement managed by the Park Trustees in a manner that prevents any loss of Beach access and enjoyment by the beneficial lot owners. The Current Club leadership has asserted that it has a right to Beach access for its members through its interpretation of its land purchase deed. Settling this question will allow us all to move forward on a secure foundation.

A copy of the letter sent to the Park residents can be found at: CP LETTER 6/7/12. A copy of the letter sent to the Club Members can be found at:  CC LETTER 6/7/12. A copy of the complaint filed on June 6 can be found at COMPLAINT FILED 6/612.

The complaint is a very simply request for a judicial clarification of the specific rights held by the Club. It need not become complicated or drawn out and could progress quite peacefully unless either party begins to try to use legal or other tactics to their advantage. We hope that will not be the case.

We are in no way “out to close the Club” as we have been hearing. Conversely, we will not allow the compromise of our ownership and enjoyment of the Beach. We wish the Club no harm but want the Club to stop hurting us. We value the presence of the Club and the longstanding relationship between the Park and the Club. We hope that the Club leadership reviews its course in the context of that relationship and its role as a member of this unique community.

We will remain open to dialogue with the Club’s leaders and our Trustees to search for alternative solutions.

Respectfully,

Arthur Dueck,     Todd Gilmore,     Nancy Binder,     William Keller

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