Why I've brought the suit
I think it's important that the members understand that this is not a war, but a disagreement among friends. Judging by their statements at the last couple of meetings, it appears that the Board have gotten themselves painted in a corner because the former GM's request for an opinion which would allow RMA to ignore this new law has now trapped them in a perceived duty to follow counsel's advice even if they doubt it, for fear that going against counsel's advice would render them more vulnerable in a suit by a disappointed applicant for an exclusive use.
I understand the Board's concern about being trapped by that opinion. This is why I suggested in July that we seek an independent opinion from the courts, and do it the cheap and easy way in small claims court. I believe that the Board's counsel's position on the statute is legally incorrect, and dangerous to RMA's treasury and thereby the membership's checkbooks. If this legal question is not resolved in the inexpensive and low-risk way I have initiated, there likely will be litigation by one or more members whose property values will be harmed by a nearby exclusive use illegally granted in violation of the new statute. Between the property value damages and the attorneys' fees (under the statute a losing association has to pay both sets of attorneys) the losses in each such case could easily reach into six figures. By instead resolving this instead in small claims court RMA can avoid that damages and attorneys' fees exposure, and receive a new, independent opinion in the form of the court's judgment upon which they could in good conscience rely.
The relevant portion of the statute reads, "... unless the association's governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board of directors may grant exclusive use..."
The theory expounded by RMA's counsel in July was that the CC&Rs' authorization of exclusive uses, which incidentally says nothing about percentages, is the type of "different percentage" which the statute allows as an alternative to a yes vote of 67 percent of the membership. But read as a whole that sentence in the statute plainly is referring to a different percentage of memberships (the "separate interests"). Only one who desperately wants to believe RMA can escape the effect of the statute can pretend that phrase refers to a board vote instead of a membership vote. The central purpose of the new law was to take these decisions away from boards, and let the members whose rights in that common area are being taken away vote on that decision.
As I have said before, the correct response to the statute is to amend our CC&Rs to specify a more reasonable approval percentage for membership voting on exclusive uses. But we can't reach that process until the Board is freed from the box it finds itself in as a result of our former manager's request for a legal opinion that might enable RMA to bluff its way past the statute and go on with business as usual. The purpose of this suit is to help the Board out of that box, and bring us into legal compliance with the statute which would allow RMA to resume granting exclusive uses legally, with the assent of the membership as is now required by state law, by adopting a more workable percentage in our CC&Rs.