No Response from Hyde after He Agrees to Work with the POA to Resolve Outstanding Issues
During the 2020 annual meeting, Glen Hyde agreed to work with the POA to resolve outstanding issues without spending money on attorney fees and court costs. He also agreed to use this website as the forum. Mr. Hyde has not responded to the POA's requests to address the issues. Below is the Board's letter to Mr. Hyde that describes what we believe are the issues and how the Board proposes to resolve them. The gold button takes you to a document that addresses two technical issues: claim and issue preclusion. Mr. Hyde believes these two issues prevent the POA from moving forward. The POA's brief explains why they don't. Glen, the Board invites your response.
February 17, 2021
Dear Glen:
During the annual meeting on December 17, 2020, you agreed to work with the POA to resolve outstanding issues. We both agreed to minimize or eliminate the amount of time and money spent on legal battles. To that end, we sent you a list of potential issues and asked you to respond with any corrections. You did not respond. This is now the fourth time you’ve backed out of an agreement to work together.
It was apparent during the meeting that neither the Board nor you were aware that the court had already signed the order granting the POA’s request for a temporary injunction. Before you knew the court’s ruling, however, you told anyone who would listen that you “won” the hearing hands down. Apparently not. The court was not convinced by your claims because Judge Shipman ordered the injunction. After reviewing the hearing transcript, this letter will address in more detail the claims you made at that time.
Now you’ve appealed the temporary injunction. By doing so, you’re forcing all parties to spend more money on attorney fees. That is not how we agreed to proceed. Despite your failure to respond, we still believe the POA must exhaust all attempts to engage in constructive dialogue.
To establish the context necessary to resolve many of the outstanding issues, we have to review airport history yet again. Without that context, we cannot accurately assess subsequent events. Please let us know if you find that we’ve misstated any facts.
When Mitch Whatley bought his first T-hangar from you in 2013, most airport common areas (runway, taxiways, ramp area) had deteriorated to the point of being dangerous and unusable. To keep from damaging his prop and landing gear, he bought a load of cold-patch material and filled in all the potholes he had enough material to fill. You paid him back for the cost of the materials after he requested it. The manufacturer of the product, EZStreet, even made a commercial about it. https://www.ezstreetasphalt.com/case-studies/runway-patches/northwest-regional-airport/. By 2015, the runway had further deteriorated and was practically unusable for many aircraft. Many of our friends and fellow pilots refused to fly into 52F because of its poor condition as acknowledged and reported by the FAA. This led to the POA seeking and the court granting the first temporary injunction so we could begin drainage repairs before replacing the runway. You adamantly opposed both projects.
A. Runway and Taxiway Access License Creates Confusion, Chaos, & Litigation
After you assumed Gene Varner’s deed and note to the airport's main common areas in late 1982 and then acquired what you called the “Northwest Development, an addition to Aero Valley Airport” in early 1983, you created a Runway and Taxiway Access license. At first, you used that license to grant runway access from the Northwest Development. You later applied it and your modified version of the AVDCO restrictions to properties you knew were already subject to AVDCO’s restrictions and non-exclusive runway access easements.
Your imposition of a contradictory runway access license and deed restrictions marked the beginning of a 38-year cycle of non-stop litigation. That cycle has yet to end. Edna Whyte and many other property owners recognized that your license represented a severe departure from the airport’s development plan. A license to access and use the same common areas already burdened by scores of non-exclusive easements created nothing but chaos and confusion as you and every other property owner quickly realized. How did you expect splitting responsibility for governance and maintenance of the same common areas would work out? How were you ever going to fulfill your maintenance promises from fees that had no budgetary basis and only a small minority of property owners paid them? By any measure, your licenses and modified AVDCO restrictions proved unworkable. Why do you insist on promoting them?
You have discussed the airport’s history with past Board members on several occasions. Although conflicting governance was the biggest elephant hiding in the room, the question of financing airport maintenance became the dominant issue. We quickly discovered what previous Board members and property owners had considered an accepted fact for many years: that the funds you received from license agreements were insufficient to provide even basic upkeep, let alone long-term maintenance or reconstruction. When you started paying yourself and Candy a $3,000 per month salary from these funds ($1,500 each), consuming $36,000 of approximately $43,000 maximum annual license-fee revenues, the problem became even worse. You have acknowledged these facts many times and in many forums. For example, you changed the language of your Runway & Taxiway License as follows:
Original (1983 at 1208/944)
Licensor agrees that all sums of money received by it from property owners for licenses similar to this for Aero Valley Airport shall be used exclusively for the maintenance, repair, construction and reconstruction of airport facilities at Aero Valley Airport which benefit Licensee and shall include a reasonable payment to Licensor for his necessary service and time. Licensor will provide Licensee with an annual accounting of funds expended. However, nothing herein shall ever be construed as requiring Licensor to expend funds not collected from license agreements such as this for any such repairs, maintenance, construction or reconstruction of any airport facility.
Revised (2012-140764)
The fund is designed primarily for the funding of, but not limited to, taxes, insurance, mowing, trash pickup, lighting, electricity, dirt work, runway & taxi-way repairs and salaries for persons maintaining, managing, and making repairs, or capital improvements on Northwest Regional Airport, which is more particularly described in Exhibit “A1”, hereto attached. Nothing herein shall ever be construed as requiring licensor to expend funds not collected from license agreements such as this for any of the above stated expenses. All funding availability for management and secretarial salaries will remain the sole discretion of licensor.
We both know that your original language only gives the appearance of a promise to keep the airport properly maintained because you make no promise that you can collect enough license fees to fulfill it. You readily admit that you’ve never collected enough license fees even to come close to keeping the airport maintained, yet you continue trying to sell it as if it's handier than pockets on a shirt. Just look at the dilapidated condition of the airport office today. Click here: https://27612217-797660143616896323.preview.editmysite.com/uploads/2/7/6/1/27612217/editor/52f-office-as-of-2020.png?1612459619.
When the runway and taxiways finally deteriorated to nearly unusable conditions, the POA always came to the rescue and we found enough donors to fix whatever needed fixed. Proceeding from one crisis to the next, however, is not how to run an airport.
You also promised to provide each licensee with an annual accounting of funds expended, yet the Board is not aware of any licensee who has ever received it. Have you ever provided it?
Given that all property owners outside the Northwest Development already had appurtenant easements to access and use the runway and other airport facilities, and they also had a duty to pay maintenance fees assessed by the ACC, your licensing scheme represented a material change to the character of the airport and the burdens on existing property owners. Edna Whyte recognized this and tried to stop it, but Hyde-Way, Inc.’s insolvency and failure to make payments to Whyte and several commercial lenders intervened. 1536/176. Instead of making payments to Whyte as the deed of trust required, you conveyed nine hangars out of Northwest Development Phase 1 to her. 1297/151. You then lost all other unsold lots owned by Hyde-Way, Inc. to First Interstate Bank. In the three documents that make up the settlement agreements, you granted runway access and use easements to these lots, even though all those outside the Northwest Development already had runway access easements granted by Whyte, AVDCO, or Varner. You did the same thing with Lewisville National Bank. 2142/207; 2547/228; 2547/244; 2547/254. The lots affected are listed in the Runway Easements page of the POA's website (www.fly52f.org).
We find the revised license language interesting as well. Instead of promising to use license fees for the maintenance, repair, construction, and reconstruction of airport facilities, you merely promise to fund salaries for persons maintaining, managing, and making repairs or capital improvements. Not that you or anyone in your employ would actually do these things.
In reality, you have used license fees to pay yourself and Candace a monthly salary, legal fees, and other expenses. With over 30 years of license-fee history behind us, you acknowledge that license fees have never been sufficient for airport maintenance, but you ignore it as if it were an inconvenient but ultimately irrelevant fact. Moreover, the Board has asked you many times to turn over minor expenses—such as the electric bill—to the POA, but you refuse. From our perspective, all you’ve done is prevent the airport from taking care of itself through a management team accountable to the property owners. Please explain your thinking as it seems contrary to everyone's best interests, especially yours.
We also note that you claim Exhibit “A1” is the entire airport when, in reality, it is merely the two runway-parallel taxiway tracts with a safety zone in between. Under no circumstances do these two tracts define the whole airport as you claim. They are merely the legal descriptions of the two main common areas that make 52F an airport community. What purpose is served by defining the airport so narrowly?
Even more interesting in the revised license agreement is your addition of a Contractual Non-Suit Agreement paragraph. This is obviously an acknowledgement of the volume of litigation caused by your license. It seems that the need for that paragraph would make you question whether your licensing scheme was the solution to or cause of all the strife. History clearly shows that it’s the latter, i.e., the cause.
B. Easement Holders Have No Duty to Hyde-Way, Inc.
We've also confirmed what many property owners already knew: that most easement holders outside the Northwest Development had not contributed anything to maintenance because they didn’t owe you or any of your entities anything. You nevertheless collected money from some easement holders under what you called the Texas Air Classics license fund or the Association Voluntary Assessment fund. In 2004, the POA even changed director qualifications to require directors to be in “good standing,” which meant current in “Yearly Association” dues and either the Texas Air Classics fund or the Association Voluntary Assessment fund. These property owners had no legal duty to pay either one, but they did have a legal duty to pay fees assessed and collected by their elected representatives (now the POA’s board of directors, which you claim has no authority).
So what choices did these property owners have? They either paid you a “voluntary assessment” and watched the airport deteriorate, or they paid nothing and still watched the airport deteriorate. From a pragmatic perspective, neither your license fee nor a voluntary assessment program has ever provided the funds necessary to keep the airport properly maintained. Given the history of your license scheme and the litigation it has caused, one begins to suspect that it may suffer from a more fundamental problem. We believe it does. We’ll cover that issue shortly.
On the other hand, you claim that the ACC had no authority and prevented it from fulfilling its duties based solely on your claim that you “own” the airport. But if you admit that Exhibit “A1” is really not the whole airport, then you also have to admit that you don't own the airport. Noell v. City of Carrollton, 431 S.W.3d 682, 700-701 (Tex. App.—Dallas 2014, pet. denied) (The term “owner” means different things in different circumstances; an owner can be any person having a property right to use the land as an airport). Applying this rationale to 52F would make the easement holders the owners of the airport.
In 2016, the Board adopted Mitch's proposal to reverse the situation by returning to the airport’s founding structure. Property owners in attendance at the annual meeting unanimously accepted the plan. That meant acknowledging that property owners already had a duty to contribute to the maintenance of airport common areas by virtue of their easements and deed restrictions. Both were in place before you arrived, and both benefit and burden the property where you currently live. The obligation to pay fees to keep common areas properly maintained as mandated by these servitudes makes the airport a common-interest community. After 38 years of litigation, recognizing that fact much sooner would have saved a tremendous amount of time, money, and aggravation.
During the hearing in November 2020, you agreed that the AVDCO restrictions applied to your northeast property. But does it make sense to limit their application only to the Northeast Addition? No, it doesn’t. Texas common law and common-interest community law answer that question for us. Under these rules, AVDCO’s restrictions should apply to every lot within airport boundaries regardless of location because that’s the only way “to carry out a general plan for the protection, use, and convenience of all property owners” and “to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways” as AVDCO obviously intended and the restrictions require. 1002/363; 1070/529. The deeds to many lots outside the Northeast Addition confirm AVDCO’s intent to apply them throughout the airport as will be shown in more detail below. This letter will also address your claim that the runway is not a common area subject to the ACC’s control. But before tackling those two issue, let’s cover a few more preliminary items.
In 2015 and then again in 2016, you said you would get on board with the POA’s plan if we figured out a way to get all property owners to pay their fair share. The POA accomplished that by recognizing a simple fact: property owners already had that duty. But you continue to fight against it because getting everyone to pay their fair share from your perspective meant everyone paying a license fee to you, even after stating in the same meeting and elsewhere that the time has come for the airport to “solo.” Your position is contradictory. How can the airport solo if only some property owners pay you a license fee and you still claim sole governing authority? Your license and claim to have sole governing authority were precisely the two issues that prevented the airport from soloing. We use the past tense on purpose. With the re-amendment of the Northwest Development restrictions, those problems no longer exist.
As we address each of the issues, we will reference documents in the public record by volume and page number or by year and document number. These documents can be accessed here: https://denton.tx.publicsearch.us/
C. Texas Common-Interest Communities and the Restatement (Third) of Property: Servitudes, Chapter 6
The frequency with which courts have dealt with these and similar problematic situations led to recognizing common-interest community law as an entirely separate body of law. Over 40 Texas cases contributed to the formulation of its rules. According to the American Law Institute, this relatively new body of law (as of the year 2000) “provides a more comprehensive statement of common-law principles for resolving disputes arising out of the creation and operation of common-interest communities than any previously attempted.” Restat (3d) Prop: Servitudes, § Scope.
Although Texas courts routinely rely on the Restatement’s principles and rules to resolve real property disputes in all kinds of developments,[1] Texas, like several other states, has not officially adopted Restatement rules governing common-interest communities other than condominiums.[2]
Relative to the complex and often sticky problems involving deed restrictions that courts usually have to solve, the situation here is simple. We’re dealing with an airport community. Every lot within the community has the right to use well-defined common areas and every property owner has an obligation to contribute to their maintenance and operation.
So there's really only one simple question: Who is best suited to protect the rights and enforce the obligations of all community members? With a century of experience under their belts, state legislatures, courts, developers, and property owners across the country all answer this question the same way: a property owners association.
If you know of a system that works better than an association of community members elected by their neighbors who have a fiduciary duty to respond to the community’s needs and are held accountable for its health and well-being, let’s hear it.
Importantly, we have found nothing in Chapter 6 of Restatement (Third) of Property: Servitudes (2000) that contradicts Texas law. Direct application of these rules provides the most efficient and equitable resolution of all issues in this case while providing a solid and easy-to-follow framework for resolution of any future disputes.
Because of the intractable problems associated with any other arrangement, developers of common-interest communities are required by law to create a POA and turn over control and title to common areas to the POA.
D. Long-term Resolution Calls for Direct Application of Common-Interest Community Law
52F is a mixed-use private airport development. Common-interest community law will apply directly to a mixed-use development if (1) at least part of the development is restricted to residential use, (2) common areas are appurtenant to individually owned property within the development, and (3) property owners have a duty to contribute to the maintenance of the common areas regardless of use. Restat (3d) Prop: Servitudes, § 6.1; Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344, 365, 929 A.2d 1060, 1072 (2007).
52F meets all three requirements. First, AVDCO restricted the 18 lots in Aero Valley Estates to residential use. 922/478. Second, airport common areas consisting of the runway-parallel-taxiway-ramp area and private roads/taxiways are appurtenant to each individually owned lot. E.g., 1002/633. Third, AVDCO’s deed restrictions and the non-exclusive easements include an obligation to contribute to the maintenance of the common areas regardless of use. 1002/363; 1070/529. Therefore, common-interest community law applies directly to 52F.
Edna Whyte and her AVDCO partners completed the transition from private flight school to common-interest community the moment they granted the first runway access easement with a requirement to pay an annual maintenance fee and executed deed restrictions to turn over control of the common areas to the property owners. They executed the documents that accomplished this between 1977 and 1979, beginning two years before you arrived. 922/478 (Jan. 13, 1977); 1002/363 and 1070/529 (Dec. 11, 1979).
To determine the scope of the ACC’s duties and property owner obligations, the AVDCO restrictions cited above should be read together. But even if not read together and assuming the document provides no other source of power to fill in gaps, the lack of express authority to assess and collect fees would be implied. “An implied obligation may also be found where the declaration expressly creates an association for the purpose of managing common property or enforcing use restrictions and design controls, but fails to include a mechanism for providing the funds necessary to carry out its functions. When such an implied obligation is established, the lots are a common-interest community within the meaning of this Chapter.” Rest (3d) Prop: Servitudes, § 6.2. Evergreen Highlands Ass’n v. West, 73 P.3d 1 (Colo. 2003); Sullivan v. O’Connor, 81 Mass. App. Ct. 200, 961 N.E.2d 143 (2012); Artemis Expl. Co. v. Ruby Lake Estates Homeowner’s Ass’n, 449 P.3d 1256, 1259 (Nev. 2019).
The restrictions recorded at 922/478 create an association in the form of an Architectural Control Committee (“ACC”). The ACC is required to govern the airport, manage common property, and enforce restrictions and design controls, but this document does not include an explicit mechanism for providing the funds necessary to carry out the ACC’s functions. Fortunately, AVDCO ensured that the ACC had the power to fill any gaps by granting it legal authority “to make whatever rulings, or hold an election, deemed necessary to protect the best interests of the property owners.” Under this provision's authority, the Board has assessed lots in Aero Valley Estates on the same square footage basis as everyone else without having to rely on any implied powers.
But even if the ACC lacked that authority, the law would imply an obligation on property owners in Aero Valley Estates to pay assessments so the ACC can carry out its functions even though subsequent AVDCO restrictions state that obligation explicitly (1002/363 and 1070/529 and elsewhere). This whole discussion just emphasizes why the Board consolidated and recorded all amendable AVDCO restrictions into one document.
By 1979, the necessity to impose the same governing structure and fee collection mechanism on all airport home/hangar lots became too obvious to ignore because of the rapid rate of development, a rate that likely would have continued but for your introduction of the runway access license. The litigation that followed brought development to a standstill. Direct application of common-interest community law will end the cycle of litigation and put the airport back on track to develop and prosper.
E. Derailment and Resurrection of Whyte’s Development Plan
The need to have the same governing structure in place throughout the airport went from being only potentially confusing to completely hidden for two reasons. First, AVDCO’s practice of imposing restrictions as lots were sold rather than recording them in a single declaration caused confusion as time passed. Any confusion, however, would have normally disappeared using common sense or, if common sense failed, existing common-law principles.
But the second and primary reason why this necessity became hidden was your actions. After assuming Varner’s deed to the main common areas, your aggressive assertions of authority and outrageous actions—most of which have already been addressed by numerous courts—effectively hid the actual scope of the AVDCO restrictions under a dense overcast of fear and uncertainty. Your often bizarre and confrontational behavior left property owners constantly running for cover as if caught in one violent thunderstorm after another. By bringing the airport to the brink of destruction, property owners finally had to abandon their cover to save the airport. And because of the tremendous value of what's at stake, we're not going to quit until the job is done.
Imposing restrictions as lots were sold was common practice among developers at that time, but it sometimes gave a false impression that the restrictions applied only to the lot sold. Thousands of other developments across the country suffered from this same practice as the Restatement commentators observed: “Before declarations came into common use, the servitudes that created a common-interest community were usually set forth in the deeds to the individual lots.” § 6.2, cmt. e. This led to courts imposing the restrictions on all similarly situated lots in the development after the first lot was sold. Evans v. Pollock, 796 S.W.2d 465 (Tex. 1990); Briars Prop. Owners Ass’n v. Addison, 2018 IL App (5th) 160293-U, ¶ 51.
You didn’t acquire the deed to any airport common areas until late 1982. That was after Whyte and her partners had granted runway access and use easements to every square inch of property then within airport boundaries. They had also already recorded deed restrictions that require an Architectural Control Committee (“ACC”) to serve as the airport’s governing body “to carry out a general plan for the protection, use, and convenience of all property owners” and a requirement for each property owner to pay a fee set by majority vote of the ACC “to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.” See e.g., 1070/529; 1002/363; etc. Your assumption of the deed to airport common areas had no effect on these pre-existing servitudes because they all run with the land. Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, 178 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet. denied). Why do you think otherwise?
In a common-interest community, deed restrictions imposed on the first lot also apply to all similarly situated lots identified in the declarations. Briars Prop. Owners Ass’n v. Addison, 2018 IL App (5th) 160293-U, ¶ 51; Restat (3d) Prop: Servitudes, § 6.2, cmt. e. The term “declarations” includes plats and deeds to individual lots that impose or reflect the servitudes that create or govern common-interest communities. Id. 52F’s declarations include the POA’s articles of incorporation and bylaws as amended, deeds and deed restrictions as amended, and various plats. To determine the benefits and burdens associated with each lot, one must read all of these documents together. We made the process somewhat easier by consolidating without amendment all AVDCO restrictions into one document.
All lots within airport boundaries are similarly situated because they were all designed to support an airport community with the construction of three types of common airport structures: homes with a single private hangar, T-hangars, and box hangars. Not a single lot intended for development falls outside these parameters, including those in the Northwest Development. As far as we know, this fact is not in dispute.
A few lots do not appear to have restrictions imposed upon them, but that does not mean they are unrestricted. Under the doctrine of implied negative reciprocal servitudes (or equitable servitudes), the same restrictions will apply to lots not explicitly restricted so long as there is a general plan and notice of the restrictions. Evans v. Pollock, 796 S.W.2d 465, 471 (Tex. 1990); Holloway Tr. v. Outpost Estates Civic Club, Inc., 135 S.W.3d 751, 756 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Here, there is no dispute about a general plan and notice of the restrictions. You had actual notice of the restrictions and easements because you were the grantee and grantor of both. Therefore, it is not even a stretch to conclude that the AVDCO restrictions apply to all properties within airport boundaries and all property owners have a duty to contribute to the maintenance of common areas regardless of use. Title companies also explicitly acknowledge both the restrictions and the general plan. For example, a warranty deed to Tract 47 in the Northeast Addition states: “An easement for ingress and egress over and across the Land for the benefit of adjacent landowners as evidenced by a general scheme of development of subject property and surrounding properties.” 4061/2686 at 2691. Many deeds contain the same or similar language acknowledging the existence of a general development plan that includes all properties within airport boundaries. This makes sense under the circumstances.
You also know that the restrictions on the first tract you acquired from AVDCO were recorded on the same day as your deed: February 22, 1980. Several airport land transactions occurred that day. There’s simply no getting around that the restrictions recorded at 1002/363 and 1025/830 apply not only to northeast hangar tracts, but also to hangar tracts in other locations. (The only differences between the T-hangar and box hangar restrictions are signage and storage of flammable liquids. T-hangar owners can’t display large signs or store flammable liquids.) To see that the AVDCO restrictions have also been applied outside the Northeast Addition, however, we need look no further than John Shackelford’s deed (Aero Valley Properties, Ltd.) from Whyte’s estate recorded at 4377/1490. All the property Shackelford acquired on both sides of the runway is subject to the following restrictions:
Dear Glen:
During the annual meeting on December 17, 2020, you agreed to work with the POA to resolve outstanding issues. We both agreed to minimize or eliminate the amount of time and money spent on legal battles. To that end, we sent you a list of potential issues and asked you to respond with any corrections. You did not respond. This is now the fourth time you’ve backed out of an agreement to work together.
It was apparent during the meeting that neither the Board nor you were aware that the court had already signed the order granting the POA’s request for a temporary injunction. Before you knew the court’s ruling, however, you told anyone who would listen that you “won” the hearing hands down. Apparently not. The court was not convinced by your claims because Judge Shipman ordered the injunction. After reviewing the hearing transcript, this letter will address in more detail the claims you made at that time.
Now you’ve appealed the temporary injunction. By doing so, you’re forcing all parties to spend more money on attorney fees. That is not how we agreed to proceed. Despite your failure to respond, we still believe the POA must exhaust all attempts to engage in constructive dialogue.
To establish the context necessary to resolve many of the outstanding issues, we have to review airport history yet again. Without that context, we cannot accurately assess subsequent events. Please let us know if you find that we’ve misstated any facts.
When Mitch Whatley bought his first T-hangar from you in 2013, most airport common areas (runway, taxiways, ramp area) had deteriorated to the point of being dangerous and unusable. To keep from damaging his prop and landing gear, he bought a load of cold-patch material and filled in all the potholes he had enough material to fill. You paid him back for the cost of the materials after he requested it. The manufacturer of the product, EZStreet, even made a commercial about it. https://www.ezstreetasphalt.com/case-studies/runway-patches/northwest-regional-airport/. By 2015, the runway had further deteriorated and was practically unusable for many aircraft. Many of our friends and fellow pilots refused to fly into 52F because of its poor condition as acknowledged and reported by the FAA. This led to the POA seeking and the court granting the first temporary injunction so we could begin drainage repairs before replacing the runway. You adamantly opposed both projects.
A. Runway and Taxiway Access License Creates Confusion, Chaos, & Litigation
After you assumed Gene Varner’s deed and note to the airport's main common areas in late 1982 and then acquired what you called the “Northwest Development, an addition to Aero Valley Airport” in early 1983, you created a Runway and Taxiway Access license. At first, you used that license to grant runway access from the Northwest Development. You later applied it and your modified version of the AVDCO restrictions to properties you knew were already subject to AVDCO’s restrictions and non-exclusive runway access easements.
Your imposition of a contradictory runway access license and deed restrictions marked the beginning of a 38-year cycle of non-stop litigation. That cycle has yet to end. Edna Whyte and many other property owners recognized that your license represented a severe departure from the airport’s development plan. A license to access and use the same common areas already burdened by scores of non-exclusive easements created nothing but chaos and confusion as you and every other property owner quickly realized. How did you expect splitting responsibility for governance and maintenance of the same common areas would work out? How were you ever going to fulfill your maintenance promises from fees that had no budgetary basis and only a small minority of property owners paid them? By any measure, your licenses and modified AVDCO restrictions proved unworkable. Why do you insist on promoting them?
You have discussed the airport’s history with past Board members on several occasions. Although conflicting governance was the biggest elephant hiding in the room, the question of financing airport maintenance became the dominant issue. We quickly discovered what previous Board members and property owners had considered an accepted fact for many years: that the funds you received from license agreements were insufficient to provide even basic upkeep, let alone long-term maintenance or reconstruction. When you started paying yourself and Candy a $3,000 per month salary from these funds ($1,500 each), consuming $36,000 of approximately $43,000 maximum annual license-fee revenues, the problem became even worse. You have acknowledged these facts many times and in many forums. For example, you changed the language of your Runway & Taxiway License as follows:
Original (1983 at 1208/944)
Licensor agrees that all sums of money received by it from property owners for licenses similar to this for Aero Valley Airport shall be used exclusively for the maintenance, repair, construction and reconstruction of airport facilities at Aero Valley Airport which benefit Licensee and shall include a reasonable payment to Licensor for his necessary service and time. Licensor will provide Licensee with an annual accounting of funds expended. However, nothing herein shall ever be construed as requiring Licensor to expend funds not collected from license agreements such as this for any such repairs, maintenance, construction or reconstruction of any airport facility.
Revised (2012-140764)
The fund is designed primarily for the funding of, but not limited to, taxes, insurance, mowing, trash pickup, lighting, electricity, dirt work, runway & taxi-way repairs and salaries for persons maintaining, managing, and making repairs, or capital improvements on Northwest Regional Airport, which is more particularly described in Exhibit “A1”, hereto attached. Nothing herein shall ever be construed as requiring licensor to expend funds not collected from license agreements such as this for any of the above stated expenses. All funding availability for management and secretarial salaries will remain the sole discretion of licensor.
We both know that your original language only gives the appearance of a promise to keep the airport properly maintained because you make no promise that you can collect enough license fees to fulfill it. You readily admit that you’ve never collected enough license fees even to come close to keeping the airport maintained, yet you continue trying to sell it as if it's handier than pockets on a shirt. Just look at the dilapidated condition of the airport office today. Click here: https://27612217-797660143616896323.preview.editmysite.com/uploads/2/7/6/1/27612217/editor/52f-office-as-of-2020.png?1612459619.
When the runway and taxiways finally deteriorated to nearly unusable conditions, the POA always came to the rescue and we found enough donors to fix whatever needed fixed. Proceeding from one crisis to the next, however, is not how to run an airport.
You also promised to provide each licensee with an annual accounting of funds expended, yet the Board is not aware of any licensee who has ever received it. Have you ever provided it?
Given that all property owners outside the Northwest Development already had appurtenant easements to access and use the runway and other airport facilities, and they also had a duty to pay maintenance fees assessed by the ACC, your licensing scheme represented a material change to the character of the airport and the burdens on existing property owners. Edna Whyte recognized this and tried to stop it, but Hyde-Way, Inc.’s insolvency and failure to make payments to Whyte and several commercial lenders intervened. 1536/176. Instead of making payments to Whyte as the deed of trust required, you conveyed nine hangars out of Northwest Development Phase 1 to her. 1297/151. You then lost all other unsold lots owned by Hyde-Way, Inc. to First Interstate Bank. In the three documents that make up the settlement agreements, you granted runway access and use easements to these lots, even though all those outside the Northwest Development already had runway access easements granted by Whyte, AVDCO, or Varner. You did the same thing with Lewisville National Bank. 2142/207; 2547/228; 2547/244; 2547/254. The lots affected are listed in the Runway Easements page of the POA's website (www.fly52f.org).
We find the revised license language interesting as well. Instead of promising to use license fees for the maintenance, repair, construction, and reconstruction of airport facilities, you merely promise to fund salaries for persons maintaining, managing, and making repairs or capital improvements. Not that you or anyone in your employ would actually do these things.
In reality, you have used license fees to pay yourself and Candace a monthly salary, legal fees, and other expenses. With over 30 years of license-fee history behind us, you acknowledge that license fees have never been sufficient for airport maintenance, but you ignore it as if it were an inconvenient but ultimately irrelevant fact. Moreover, the Board has asked you many times to turn over minor expenses—such as the electric bill—to the POA, but you refuse. From our perspective, all you’ve done is prevent the airport from taking care of itself through a management team accountable to the property owners. Please explain your thinking as it seems contrary to everyone's best interests, especially yours.
We also note that you claim Exhibit “A1” is the entire airport when, in reality, it is merely the two runway-parallel taxiway tracts with a safety zone in between. Under no circumstances do these two tracts define the whole airport as you claim. They are merely the legal descriptions of the two main common areas that make 52F an airport community. What purpose is served by defining the airport so narrowly?
Even more interesting in the revised license agreement is your addition of a Contractual Non-Suit Agreement paragraph. This is obviously an acknowledgement of the volume of litigation caused by your license. It seems that the need for that paragraph would make you question whether your licensing scheme was the solution to or cause of all the strife. History clearly shows that it’s the latter, i.e., the cause.
B. Easement Holders Have No Duty to Hyde-Way, Inc.
We've also confirmed what many property owners already knew: that most easement holders outside the Northwest Development had not contributed anything to maintenance because they didn’t owe you or any of your entities anything. You nevertheless collected money from some easement holders under what you called the Texas Air Classics license fund or the Association Voluntary Assessment fund. In 2004, the POA even changed director qualifications to require directors to be in “good standing,” which meant current in “Yearly Association” dues and either the Texas Air Classics fund or the Association Voluntary Assessment fund. These property owners had no legal duty to pay either one, but they did have a legal duty to pay fees assessed and collected by their elected representatives (now the POA’s board of directors, which you claim has no authority).
So what choices did these property owners have? They either paid you a “voluntary assessment” and watched the airport deteriorate, or they paid nothing and still watched the airport deteriorate. From a pragmatic perspective, neither your license fee nor a voluntary assessment program has ever provided the funds necessary to keep the airport properly maintained. Given the history of your license scheme and the litigation it has caused, one begins to suspect that it may suffer from a more fundamental problem. We believe it does. We’ll cover that issue shortly.
On the other hand, you claim that the ACC had no authority and prevented it from fulfilling its duties based solely on your claim that you “own” the airport. But if you admit that Exhibit “A1” is really not the whole airport, then you also have to admit that you don't own the airport. Noell v. City of Carrollton, 431 S.W.3d 682, 700-701 (Tex. App.—Dallas 2014, pet. denied) (The term “owner” means different things in different circumstances; an owner can be any person having a property right to use the land as an airport). Applying this rationale to 52F would make the easement holders the owners of the airport.
In 2016, the Board adopted Mitch's proposal to reverse the situation by returning to the airport’s founding structure. Property owners in attendance at the annual meeting unanimously accepted the plan. That meant acknowledging that property owners already had a duty to contribute to the maintenance of airport common areas by virtue of their easements and deed restrictions. Both were in place before you arrived, and both benefit and burden the property where you currently live. The obligation to pay fees to keep common areas properly maintained as mandated by these servitudes makes the airport a common-interest community. After 38 years of litigation, recognizing that fact much sooner would have saved a tremendous amount of time, money, and aggravation.
During the hearing in November 2020, you agreed that the AVDCO restrictions applied to your northeast property. But does it make sense to limit their application only to the Northeast Addition? No, it doesn’t. Texas common law and common-interest community law answer that question for us. Under these rules, AVDCO’s restrictions should apply to every lot within airport boundaries regardless of location because that’s the only way “to carry out a general plan for the protection, use, and convenience of all property owners” and “to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways” as AVDCO obviously intended and the restrictions require. 1002/363; 1070/529. The deeds to many lots outside the Northeast Addition confirm AVDCO’s intent to apply them throughout the airport as will be shown in more detail below. This letter will also address your claim that the runway is not a common area subject to the ACC’s control. But before tackling those two issue, let’s cover a few more preliminary items.
In 2015 and then again in 2016, you said you would get on board with the POA’s plan if we figured out a way to get all property owners to pay their fair share. The POA accomplished that by recognizing a simple fact: property owners already had that duty. But you continue to fight against it because getting everyone to pay their fair share from your perspective meant everyone paying a license fee to you, even after stating in the same meeting and elsewhere that the time has come for the airport to “solo.” Your position is contradictory. How can the airport solo if only some property owners pay you a license fee and you still claim sole governing authority? Your license and claim to have sole governing authority were precisely the two issues that prevented the airport from soloing. We use the past tense on purpose. With the re-amendment of the Northwest Development restrictions, those problems no longer exist.
As we address each of the issues, we will reference documents in the public record by volume and page number or by year and document number. These documents can be accessed here: https://denton.tx.publicsearch.us/
C. Texas Common-Interest Communities and the Restatement (Third) of Property: Servitudes, Chapter 6
The frequency with which courts have dealt with these and similar problematic situations led to recognizing common-interest community law as an entirely separate body of law. Over 40 Texas cases contributed to the formulation of its rules. According to the American Law Institute, this relatively new body of law (as of the year 2000) “provides a more comprehensive statement of common-law principles for resolving disputes arising out of the creation and operation of common-interest communities than any previously attempted.” Restat (3d) Prop: Servitudes, § Scope.
Although Texas courts routinely rely on the Restatement’s principles and rules to resolve real property disputes in all kinds of developments,[1] Texas, like several other states, has not officially adopted Restatement rules governing common-interest communities other than condominiums.[2]
Relative to the complex and often sticky problems involving deed restrictions that courts usually have to solve, the situation here is simple. We’re dealing with an airport community. Every lot within the community has the right to use well-defined common areas and every property owner has an obligation to contribute to their maintenance and operation.
So there's really only one simple question: Who is best suited to protect the rights and enforce the obligations of all community members? With a century of experience under their belts, state legislatures, courts, developers, and property owners across the country all answer this question the same way: a property owners association.
If you know of a system that works better than an association of community members elected by their neighbors who have a fiduciary duty to respond to the community’s needs and are held accountable for its health and well-being, let’s hear it.
Importantly, we have found nothing in Chapter 6 of Restatement (Third) of Property: Servitudes (2000) that contradicts Texas law. Direct application of these rules provides the most efficient and equitable resolution of all issues in this case while providing a solid and easy-to-follow framework for resolution of any future disputes.
Because of the intractable problems associated with any other arrangement, developers of common-interest communities are required by law to create a POA and turn over control and title to common areas to the POA.
D. Long-term Resolution Calls for Direct Application of Common-Interest Community Law
52F is a mixed-use private airport development. Common-interest community law will apply directly to a mixed-use development if (1) at least part of the development is restricted to residential use, (2) common areas are appurtenant to individually owned property within the development, and (3) property owners have a duty to contribute to the maintenance of the common areas regardless of use. Restat (3d) Prop: Servitudes, § 6.1; Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344, 365, 929 A.2d 1060, 1072 (2007).
52F meets all three requirements. First, AVDCO restricted the 18 lots in Aero Valley Estates to residential use. 922/478. Second, airport common areas consisting of the runway-parallel-taxiway-ramp area and private roads/taxiways are appurtenant to each individually owned lot. E.g., 1002/633. Third, AVDCO’s deed restrictions and the non-exclusive easements include an obligation to contribute to the maintenance of the common areas regardless of use. 1002/363; 1070/529. Therefore, common-interest community law applies directly to 52F.
Edna Whyte and her AVDCO partners completed the transition from private flight school to common-interest community the moment they granted the first runway access easement with a requirement to pay an annual maintenance fee and executed deed restrictions to turn over control of the common areas to the property owners. They executed the documents that accomplished this between 1977 and 1979, beginning two years before you arrived. 922/478 (Jan. 13, 1977); 1002/363 and 1070/529 (Dec. 11, 1979).
To determine the scope of the ACC’s duties and property owner obligations, the AVDCO restrictions cited above should be read together. But even if not read together and assuming the document provides no other source of power to fill in gaps, the lack of express authority to assess and collect fees would be implied. “An implied obligation may also be found where the declaration expressly creates an association for the purpose of managing common property or enforcing use restrictions and design controls, but fails to include a mechanism for providing the funds necessary to carry out its functions. When such an implied obligation is established, the lots are a common-interest community within the meaning of this Chapter.” Rest (3d) Prop: Servitudes, § 6.2. Evergreen Highlands Ass’n v. West, 73 P.3d 1 (Colo. 2003); Sullivan v. O’Connor, 81 Mass. App. Ct. 200, 961 N.E.2d 143 (2012); Artemis Expl. Co. v. Ruby Lake Estates Homeowner’s Ass’n, 449 P.3d 1256, 1259 (Nev. 2019).
The restrictions recorded at 922/478 create an association in the form of an Architectural Control Committee (“ACC”). The ACC is required to govern the airport, manage common property, and enforce restrictions and design controls, but this document does not include an explicit mechanism for providing the funds necessary to carry out the ACC’s functions. Fortunately, AVDCO ensured that the ACC had the power to fill any gaps by granting it legal authority “to make whatever rulings, or hold an election, deemed necessary to protect the best interests of the property owners.” Under this provision's authority, the Board has assessed lots in Aero Valley Estates on the same square footage basis as everyone else without having to rely on any implied powers.
But even if the ACC lacked that authority, the law would imply an obligation on property owners in Aero Valley Estates to pay assessments so the ACC can carry out its functions even though subsequent AVDCO restrictions state that obligation explicitly (1002/363 and 1070/529 and elsewhere). This whole discussion just emphasizes why the Board consolidated and recorded all amendable AVDCO restrictions into one document.
By 1979, the necessity to impose the same governing structure and fee collection mechanism on all airport home/hangar lots became too obvious to ignore because of the rapid rate of development, a rate that likely would have continued but for your introduction of the runway access license. The litigation that followed brought development to a standstill. Direct application of common-interest community law will end the cycle of litigation and put the airport back on track to develop and prosper.
E. Derailment and Resurrection of Whyte’s Development Plan
The need to have the same governing structure in place throughout the airport went from being only potentially confusing to completely hidden for two reasons. First, AVDCO’s practice of imposing restrictions as lots were sold rather than recording them in a single declaration caused confusion as time passed. Any confusion, however, would have normally disappeared using common sense or, if common sense failed, existing common-law principles.
But the second and primary reason why this necessity became hidden was your actions. After assuming Varner’s deed to the main common areas, your aggressive assertions of authority and outrageous actions—most of which have already been addressed by numerous courts—effectively hid the actual scope of the AVDCO restrictions under a dense overcast of fear and uncertainty. Your often bizarre and confrontational behavior left property owners constantly running for cover as if caught in one violent thunderstorm after another. By bringing the airport to the brink of destruction, property owners finally had to abandon their cover to save the airport. And because of the tremendous value of what's at stake, we're not going to quit until the job is done.
Imposing restrictions as lots were sold was common practice among developers at that time, but it sometimes gave a false impression that the restrictions applied only to the lot sold. Thousands of other developments across the country suffered from this same practice as the Restatement commentators observed: “Before declarations came into common use, the servitudes that created a common-interest community were usually set forth in the deeds to the individual lots.” § 6.2, cmt. e. This led to courts imposing the restrictions on all similarly situated lots in the development after the first lot was sold. Evans v. Pollock, 796 S.W.2d 465 (Tex. 1990); Briars Prop. Owners Ass’n v. Addison, 2018 IL App (5th) 160293-U, ¶ 51.
You didn’t acquire the deed to any airport common areas until late 1982. That was after Whyte and her partners had granted runway access and use easements to every square inch of property then within airport boundaries. They had also already recorded deed restrictions that require an Architectural Control Committee (“ACC”) to serve as the airport’s governing body “to carry out a general plan for the protection, use, and convenience of all property owners” and a requirement for each property owner to pay a fee set by majority vote of the ACC “to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.” See e.g., 1070/529; 1002/363; etc. Your assumption of the deed to airport common areas had no effect on these pre-existing servitudes because they all run with the land. Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, 178 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet. denied). Why do you think otherwise?
In a common-interest community, deed restrictions imposed on the first lot also apply to all similarly situated lots identified in the declarations. Briars Prop. Owners Ass’n v. Addison, 2018 IL App (5th) 160293-U, ¶ 51; Restat (3d) Prop: Servitudes, § 6.2, cmt. e. The term “declarations” includes plats and deeds to individual lots that impose or reflect the servitudes that create or govern common-interest communities. Id. 52F’s declarations include the POA’s articles of incorporation and bylaws as amended, deeds and deed restrictions as amended, and various plats. To determine the benefits and burdens associated with each lot, one must read all of these documents together. We made the process somewhat easier by consolidating without amendment all AVDCO restrictions into one document.
All lots within airport boundaries are similarly situated because they were all designed to support an airport community with the construction of three types of common airport structures: homes with a single private hangar, T-hangars, and box hangars. Not a single lot intended for development falls outside these parameters, including those in the Northwest Development. As far as we know, this fact is not in dispute.
A few lots do not appear to have restrictions imposed upon them, but that does not mean they are unrestricted. Under the doctrine of implied negative reciprocal servitudes (or equitable servitudes), the same restrictions will apply to lots not explicitly restricted so long as there is a general plan and notice of the restrictions. Evans v. Pollock, 796 S.W.2d 465, 471 (Tex. 1990); Holloway Tr. v. Outpost Estates Civic Club, Inc., 135 S.W.3d 751, 756 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Here, there is no dispute about a general plan and notice of the restrictions. You had actual notice of the restrictions and easements because you were the grantee and grantor of both. Therefore, it is not even a stretch to conclude that the AVDCO restrictions apply to all properties within airport boundaries and all property owners have a duty to contribute to the maintenance of common areas regardless of use. Title companies also explicitly acknowledge both the restrictions and the general plan. For example, a warranty deed to Tract 47 in the Northeast Addition states: “An easement for ingress and egress over and across the Land for the benefit of adjacent landowners as evidenced by a general scheme of development of subject property and surrounding properties.” 4061/2686 at 2691. Many deeds contain the same or similar language acknowledging the existence of a general development plan that includes all properties within airport boundaries. This makes sense under the circumstances.
You also know that the restrictions on the first tract you acquired from AVDCO were recorded on the same day as your deed: February 22, 1980. Several airport land transactions occurred that day. There’s simply no getting around that the restrictions recorded at 1002/363 and 1025/830 apply not only to northeast hangar tracts, but also to hangar tracts in other locations. (The only differences between the T-hangar and box hangar restrictions are signage and storage of flammable liquids. T-hangar owners can’t display large signs or store flammable liquids.) To see that the AVDCO restrictions have also been applied outside the Northeast Addition, however, we need look no further than John Shackelford’s deed (Aero Valley Properties, Ltd.) from Whyte’s estate recorded at 4377/1490. All the property Shackelford acquired on both sides of the runway is subject to the following restrictions:
The restrictions recorded at 922/478 establish the ACC as the airport’s governing body. Those at 1002/363 establish the ACC’s purpose “to carry out a general plan for the protection, use, and convenience of all property owners” and the property owners’ duty to pay the fees assessed by the ACC to keep the airport properly maintained. Those at 1212/542 reflect you designating airport common areas as public access without the consent of either the easement holders or AVDCO. Finally, the restrictions at 3083/1 slightly modify the restrictions associated with stand-alone box hangars and those connected by common walls.
Stan Price, Ray Keasler, and John Everett provide a slightly different example of how AVDCO ensured all properties were subject to the appropriate restrictions. AVDCO sold several northeast lots to Price, Keasler, and Everett before AVDCO had recorded the restrictions on their lots. To correct this situation, AVDCO recorded the restrictions, then Price and AVDCO exchanged deeds with the restrictions applied. 953/236 (AVDCO conveys to Price with no restrictions); 1026/669 (Price conveys back to AVDCO); 1026/675 (AVDCO conveys back to Price subject to the restrictions recorded at 1025/830). Notice the proximity of the volume and page numbers of the last three recordings. Also note the order of recording: restrictions first, then the deeds. Ray Keasler and John Everett went through the same process.
The one large tract on the west side of the runway consisting of four rows of open T-hangars that Shackelford acquired appears nowhere in Exhibit “A” of the recorded restrictions, yet the executors of Whyte’s estates ensured that the AVDCO restrictions applied to these tracts when Shackelford acquired it. So there is no credible argument that AVDCO’s restrictions apply only to the property shown in Exhibit “A” of any given recording of the restrictions.
By 1981, AVDCO had identified all common areas (common property) subject to the ACC’s authority. All properties enjoy non-exclusive easements to these common areas as identified in each deed. The terms of AVDCO’s easements quickly evolved to include both a right and an obligation to keep the common areas properly maintained. For example, consider the easement-granting language in Stan Price’s deed recorded at 1026/675 on July 15, 1980:
Stan Price, Ray Keasler, and John Everett provide a slightly different example of how AVDCO ensured all properties were subject to the appropriate restrictions. AVDCO sold several northeast lots to Price, Keasler, and Everett before AVDCO had recorded the restrictions on their lots. To correct this situation, AVDCO recorded the restrictions, then Price and AVDCO exchanged deeds with the restrictions applied. 953/236 (AVDCO conveys to Price with no restrictions); 1026/669 (Price conveys back to AVDCO); 1026/675 (AVDCO conveys back to Price subject to the restrictions recorded at 1025/830). Notice the proximity of the volume and page numbers of the last three recordings. Also note the order of recording: restrictions first, then the deeds. Ray Keasler and John Everett went through the same process.
The one large tract on the west side of the runway consisting of four rows of open T-hangars that Shackelford acquired appears nowhere in Exhibit “A” of the recorded restrictions, yet the executors of Whyte’s estates ensured that the AVDCO restrictions applied to these tracts when Shackelford acquired it. So there is no credible argument that AVDCO’s restrictions apply only to the property shown in Exhibit “A” of any given recording of the restrictions.
By 1981, AVDCO had identified all common areas (common property) subject to the ACC’s authority. All properties enjoy non-exclusive easements to these common areas as identified in each deed. The terms of AVDCO’s easements quickly evolved to include both a right and an obligation to keep the common areas properly maintained. For example, consider the easement-granting language in Stan Price’s deed recorded at 1026/675 on July 15, 1980:
This same language appears in dozens of deeds to lots all over the airport. But even where it doesn’t, AVDCO’s deed restrictions include the same obligation and so does Texas easement law. Reyna v. Ayco Dev. Corp., 788 S.W.2d 722, 724 (Tex. App.—Austin 1990, writ denied); Smith v. Huston, 251 S.W.3d 808, 829 (Tex. App.—Fort Worth 2008, pet. denied). Thus, the obligation to contribute to the maintenance of common areas bears no relationship to actual use. Whether used every day or hardly ever, every property owner has the same duty to pay.
Again, Whyte’s restrictions require the ACC to serve as the airport’s governing body (922/478) and the ACC is required to assess and collect fees from all property owners to “provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.” See 1002/363; 1025/830; 1142/467; 1112/465; 3083/1 (partial combining of 1002/363 and 1025/830). The buildings referred to in this sentence include non-obvious easements like the airport office, hangars, and all other structures within the entire ramp area. This acreage is part of the first tract Whyte acquired to create the airport (24.216 acres) and she reserved it as an easement when she conveyed most of the 24.216-acre tract to Gene Varner in 1980. The POA combined all amendable AVDCO restrictions into one document and recorded it at Document 2019-136773. A newly elected ACC also permanently delegated its authority to the POA’s board of directors on August 12, 2020. Document 2020-120919. Now let’s turn to the claims you made during the hearing on November 9, 2020.
F. Analysis of Claims You Made During the November 2020 Hearing
It looks like your defense against the POA consists of four claims:
Claim 1: The Fort Worth Court of Appeals’ opinion includes two independent holdings: (1) that the IDRs were invalid and (2) the POA could not financially burden property owners.
This claim relies on taking a single clause out of context and ignoring the obvious cause-and-effect relationship of the court’s holding. Here’s the language in question:
“Having sustained part of the Hyde Parties’ second and third issues, we reverse the trial court’s final judgment and render a declaratory judgment in favor of the Hyde Parties that the IDRs are invalid and unenforceable and that the POA lacks the authority to financially obligate the property owners at the Airport.”[1]
You focus on a single phrase: “the POA lacks the authority to financially obligate the property owners at the Airport.” To reach the conclusion that this statement applies to the POA under all circumstances requires ignoring the obvious cause-and-effect relationship between the two predicate clauses and the context of the entire opinion.
To put the quoted paragraph into context, we must consider all elements that led to Justice Meier's conclusion. He set the stage early in his opinion:
“At stake: Consolidating the authority to assess fees and maintain the Airport’s common areas in the POA.”
To address severe maintenance problems, fix drainage, replace the runway, and get the airport back on track and under control of the property owners where it belonged, the POA integrated all restrictions across the airport, eliminated contradictions between the AVDCO and Hyde’s version of them, and then claimed to have received a majority of signatures throughout the airport based on the number of signatures the POA acquired in each category. The trial court agreed with this method, but Justice Meier did not:
“A majority of the then property owners subject to each set of preexisting deed restrictions failed to approve the IDRs; therefore, as a matter of law, the IDRs are invalid and unenforceable, and the POA lacks the authority to assess fees to maintain the Airport’s common areas.”
The cause-and-effect relationship is now crystal clear. Why does the POA lack authority (effect)? Because a majority of the then property owners subject to each set of preexisting deed restrictions failed to approve the IDRs (cause).
All airport properties then reverted to whichever deed restrictions validly applied before the IDRs. Thus, validity of the AVDCO restrictions was not an issue. Whatever restrictions were valid before the IDRs were necessarily valid after the IDRs.
Another way to test the claim of two independent holdings is to reverse the cause and see if the same effect follows. Thus, could the court conclude that a majority successfully approved the IDRs and the POA lacks authority? No. Reversing one without reversing the other produces a contradiction.
Claim 2: The airport is only a runway.
This claim contradicts claims you make in other documents and it also contradicts all other definitions of an airport as reported by every authority. For example, the restrictions you filed for record on April 29, 1983 at 1212/542 state:
The property described on the attached Exhibit “A” is hereby set aside for use as a public access airport facility, including runways, taxiways, maintenance and repair and storage buildings, and service buildings necessary for the operation of such real property and improvements as such public access airport facility.
Exhibit “A” includes the entire ramp area where the buildings referenced above are located, as well as both runway-parallel taxiway tracts. You later expanded the property you claim is public access airport property when you conveyed these common areas to Texas Air Classics in 1992. 3415/321. But instead of just the ramp area and buildings, in these restrictions you include the lot access areas and easements in Phases I and II of the Northwest Development and runway safety zones (Tracts 23E, 24, and 27). On December 31, 2008 (2009-29338), you further expanded airport property to include the following tracts:
Again, Whyte’s restrictions require the ACC to serve as the airport’s governing body (922/478) and the ACC is required to assess and collect fees from all property owners to “provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.” See 1002/363; 1025/830; 1142/467; 1112/465; 3083/1 (partial combining of 1002/363 and 1025/830). The buildings referred to in this sentence include non-obvious easements like the airport office, hangars, and all other structures within the entire ramp area. This acreage is part of the first tract Whyte acquired to create the airport (24.216 acres) and she reserved it as an easement when she conveyed most of the 24.216-acre tract to Gene Varner in 1980. The POA combined all amendable AVDCO restrictions into one document and recorded it at Document 2019-136773. A newly elected ACC also permanently delegated its authority to the POA’s board of directors on August 12, 2020. Document 2020-120919. Now let’s turn to the claims you made during the hearing on November 9, 2020.
F. Analysis of Claims You Made During the November 2020 Hearing
It looks like your defense against the POA consists of four claims:
- the Fort Worth Court of Appeals’ holding that the IDRs were invalid and the POA could not financially burden property owners are two independent holdings;
- the airport is only the runway;
- the ACC does not govern the runway because the ACC is not mentioned anywhere in the runway’s chain of title; and
- property owners in the Northwest Development did not re-amend their deed restrictions because they can’t be amended for 99 years.
Claim 1: The Fort Worth Court of Appeals’ opinion includes two independent holdings: (1) that the IDRs were invalid and (2) the POA could not financially burden property owners.
This claim relies on taking a single clause out of context and ignoring the obvious cause-and-effect relationship of the court’s holding. Here’s the language in question:
“Having sustained part of the Hyde Parties’ second and third issues, we reverse the trial court’s final judgment and render a declaratory judgment in favor of the Hyde Parties that the IDRs are invalid and unenforceable and that the POA lacks the authority to financially obligate the property owners at the Airport.”[1]
You focus on a single phrase: “the POA lacks the authority to financially obligate the property owners at the Airport.” To reach the conclusion that this statement applies to the POA under all circumstances requires ignoring the obvious cause-and-effect relationship between the two predicate clauses and the context of the entire opinion.
To put the quoted paragraph into context, we must consider all elements that led to Justice Meier's conclusion. He set the stage early in his opinion:
“At stake: Consolidating the authority to assess fees and maintain the Airport’s common areas in the POA.”
To address severe maintenance problems, fix drainage, replace the runway, and get the airport back on track and under control of the property owners where it belonged, the POA integrated all restrictions across the airport, eliminated contradictions between the AVDCO and Hyde’s version of them, and then claimed to have received a majority of signatures throughout the airport based on the number of signatures the POA acquired in each category. The trial court agreed with this method, but Justice Meier did not:
“A majority of the then property owners subject to each set of preexisting deed restrictions failed to approve the IDRs; therefore, as a matter of law, the IDRs are invalid and unenforceable, and the POA lacks the authority to assess fees to maintain the Airport’s common areas.”
The cause-and-effect relationship is now crystal clear. Why does the POA lack authority (effect)? Because a majority of the then property owners subject to each set of preexisting deed restrictions failed to approve the IDRs (cause).
All airport properties then reverted to whichever deed restrictions validly applied before the IDRs. Thus, validity of the AVDCO restrictions was not an issue. Whatever restrictions were valid before the IDRs were necessarily valid after the IDRs.
Another way to test the claim of two independent holdings is to reverse the cause and see if the same effect follows. Thus, could the court conclude that a majority successfully approved the IDRs and the POA lacks authority? No. Reversing one without reversing the other produces a contradiction.
Claim 2: The airport is only a runway.
This claim contradicts claims you make in other documents and it also contradicts all other definitions of an airport as reported by every authority. For example, the restrictions you filed for record on April 29, 1983 at 1212/542 state:
The property described on the attached Exhibit “A” is hereby set aside for use as a public access airport facility, including runways, taxiways, maintenance and repair and storage buildings, and service buildings necessary for the operation of such real property and improvements as such public access airport facility.
Exhibit “A” includes the entire ramp area where the buildings referenced above are located, as well as both runway-parallel taxiway tracts. You later expanded the property you claim is public access airport property when you conveyed these common areas to Texas Air Classics in 1992. 3415/321. But instead of just the ramp area and buildings, in these restrictions you include the lot access areas and easements in Phases I and II of the Northwest Development and runway safety zones (Tracts 23E, 24, and 27). On December 31, 2008 (2009-29338), you further expanded airport property to include the following tracts:
Many of these tracts were undeveloped or cannot be developed. Others are vacant lots or T-hangars. In any event, many of these lots do not meet the requirements of “public access airport property” as you claim. On what basis do you believe they do?
Let’s now look at the official definitions of an airport.
49 USCS § 47102 - (i) an area of land or water used or intended to be used for the landing and taking off of aircraft, and (ii) an appurtenant area used or intended to be used for airport buildings or other airport facilities or rights of way; and (iii) airport buildings and facilities located in any of those areas.
FAA Doc 5190.6B, Appendix Z – An area of land or water which is used, or intended to be used, for the aircraft takeoff and landing. It includes any appurtenant areas used, or intended to be used, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon. It also includes any heliport.
Tex. Transp. Code Ann. § 22.001.(2) - (A) an area used or intended for use for the landing and takeoff of aircraft; (B) an appurtenant area used or intended for use for an airport building or other airport facility or right-of-way; and (C) an airport building or facility located on an appurtenant area.
Tex. Tax Code Ann. § 23.91(1): Real property designed to be used or is used for airport purposes, including the landing, parking, shelter, or takeoff of aircraft and the accommodation of individuals engaged in the operation, maintenance, or navigation of aircraft or of aircraft passengers in connection with their use of aircraft or airport property.
Oxford Dictionary: a complex of runways and buildings for the takeoff, landing, and maintenance of civil aircraft, with facilities for passengers.
Merriam-Webster: a place from which aircraft operate that usually has paved runways and maintenance facilities and often serves as a terminal.
In light of the above, your claim that the airport is just a runway has no support. But we suspect we know why you made the claim: without it, your next claim also lacks support. Let’s now turn to your third claim.
Claim 3: The ACC does not govern the runway because the ACC is not mentioned anywhere in the runway’s chain of title.
This claim is both false and a red herring. First, the runway has never been described as a single tract by itself because it was created out of two tracts of land in two different surveys and at two different times. Edna Whyte operated the airport for ten years with a 2,200-foot runway and taxiway constructed out of her first 24.216-acre tract. This tract is located entirely within the G. Ramsdale A-1128 survey. The north end of this 10.06-acre tract (195’ x 2247’) abuts the northern border of the G. Ramsdale A-1128 survey. See Figure 1 below.
Let’s now look at the official definitions of an airport.
49 USCS § 47102 - (i) an area of land or water used or intended to be used for the landing and taking off of aircraft, and (ii) an appurtenant area used or intended to be used for airport buildings or other airport facilities or rights of way; and (iii) airport buildings and facilities located in any of those areas.
FAA Doc 5190.6B, Appendix Z – An area of land or water which is used, or intended to be used, for the aircraft takeoff and landing. It includes any appurtenant areas used, or intended to be used, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon. It also includes any heliport.
Tex. Transp. Code Ann. § 22.001.(2) - (A) an area used or intended for use for the landing and takeoff of aircraft; (B) an appurtenant area used or intended for use for an airport building or other airport facility or right-of-way; and (C) an airport building or facility located on an appurtenant area.
Tex. Tax Code Ann. § 23.91(1): Real property designed to be used or is used for airport purposes, including the landing, parking, shelter, or takeoff of aircraft and the accommodation of individuals engaged in the operation, maintenance, or navigation of aircraft or of aircraft passengers in connection with their use of aircraft or airport property.
Oxford Dictionary: a complex of runways and buildings for the takeoff, landing, and maintenance of civil aircraft, with facilities for passengers.
Merriam-Webster: a place from which aircraft operate that usually has paved runways and maintenance facilities and often serves as a terminal.
In light of the above, your claim that the airport is just a runway has no support. But we suspect we know why you made the claim: without it, your next claim also lacks support. Let’s now turn to your third claim.
Claim 3: The ACC does not govern the runway because the ACC is not mentioned anywhere in the runway’s chain of title.
This claim is both false and a red herring. First, the runway has never been described as a single tract by itself because it was created out of two tracts of land in two different surveys and at two different times. Edna Whyte operated the airport for ten years with a 2,200-foot runway and taxiway constructed out of her first 24.216-acre tract. This tract is located entirely within the G. Ramsdale A-1128 survey. The north end of this 10.06-acre tract (195’ x 2247’) abuts the northern border of the G. Ramsdale A-1128 survey. See Figure 1 below.
In 1978, AVDCO extended the runway 1,273 feet north into the 47.5-acre tract. This 5.7-acre tract (195’ x 1273’) is located entirely within the F. M. Woodward A-1420 survey. Because of the temporal gap and two different surveys, two separate tracts provide the full legal description of the runway, east safety zone, and parallel taxiway. Years later, you combined these two tracts into one. See e.g., 2009-29338. Thus, there is no such thing as a deed history of the runway by itself as you well know. Let’s now turn to your claim that the runway-parallel taxiway tracts are not common areas under the ACC’s governing authority.
Analysis of Your Claim that the Runway Is Not a Common Area Subject to the ACC’s Authority
We can shed light on this claim and demonstrate its fallacy quite easily. You have somehow convinced yourself that the runway is not a common area subject to the ACC’s authority for two reasons. First, because you believe that nowhere in the runway's chain of title does the ACC appear. This belief is simply false. The north runway extension is part of the 47.5 acres of the northeast addition, which the AVDCO restrictions explicitly identify as restricted property. But what about the original runway that's in the 24.216-acre tract? We'll get there shortly. But think about it: Do you think the ACC could have authority over the north runway extension but not the original runway? Come on ....
Second, you also believe the ACC lacks authority over the runway because the AVDCO restrictions do not use the word “runway” in the provision requiring property owners to pay fees for common-area maintenance. This provision appears in either paragraph 8(b) or 10(b) of the AVDCO restrictions depending on which recording you’re looking at. It states: “a monthly fee ... shall be paid by each property owner to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.”
You believe the common areas in this sentence are limited to Northeast Addition common areas only. This belief is also false. You assume that if the ACC governs the runway, then the provision above would say so explicitly. It does, but you don’t see it because you’re not considering the definition of a common area and not recognizing that common areas vary in their descriptions and scope depending on lot location and when the right to access and use the common area was granted. Thus, AVDCO’s use of the term “common areas” must be generic rather than specific to cover all variations.
Let’s begin with the definition of a common area. A common area is property appurtenant to individually owned lots subject to identical or similar property rights for its access and use.[1] Because the AVDCO deed restrictions apply to all lots within airport boundaries regardless of location, you have to look to specific deeds to determine which property is common property relative to any given lot. For example, the deeds to all your northeast lots include the same easement-granting language and Exhibit “B” contains the same four easement tracts[2]:
“TOGETHER WITH a non-exclusive easement for vehicular access and airport and taxiway purposes including all necessary and desirable appurtenances along, over, under, across and upon the tracts of land described by metes and bounds in Exhibit “B” attached hereto ….
SUBJECT TO RESTRICTIONS executed by Edna Gardner Whyte, Michael J. O’Brien, and John R. Everett, and recorded in Denton County, Texas.
SUBJECT TO EASEMENTS of record.”
Exhibit “B”
Tract I: Kelly Drive, the north cross-over that runs east-west from the middle of Cleveland Gibbs Road to the middle of Aero Valley Estates, then runs north-south through the middle of Aero Valley Estates, and then east-west back to the middle of the parallel taxiway opposite the tetrahedron (wind direction indicator).
Tract II: North runway-safety zone-parallel taxiway extension (195’ x 1273’).
Tract III: Original runway-safety zone with parallel taxiway moved to east side (195’ x 2248’).
Tract IV: Douglas Drive, the interior taxiway/roadway that runs north-south between the middle northeast tract terminating at Kelly Drive to the south and making a 90 degree turn to the west at your lot on the north, then running east-west back to the middle of the parallel taxiway in front of Leslie Bellar's, Stan Price's, and Tim Wade's hangars.
Every lot within airport boundaries includes an identical or similar right to access and use Tracts II and III, including the lots in the Northwest Development. These two runway-parallel taxiway tracts are also appurtenant to all individually owned lots. Therefore, they are common areas by definition.
Now let’s look at the common areas appurtenant to the 0.86-acre lot you acquired from Edna on the west side of the airport between the Triangle Aviation (John Brown) tract and the open T-hangars. Gene Varner granted the runway access and use easement to this tract (1144/179) after Edna conveyed these common areas to him. The “Deed Granting Easement” includes only Tracts II and III as common areas. Tracts I and IV are not appurtenant to it; thus, they are not common areas relative to that tract.
This same theme plays out in every lot within airport boundaries, even in the Northwest Development. As discussed in more detail below, you copied easement Tract II and Tract III from one of your northeast deeds and pasted them into your license agreement. You then sold the license to purchasers of Northwest Development hangars and lots, tacitly claiming that you had the right to sell access to them even though you really had no authority to do so because they were already burdened by AVDCO's easements and restrictions. Even if construed as a license, your Runway and Taxiway Access addendum is still similar to an easement, at least with respect to access and use. Therefore, Tracts II and III are common areas relative to Northwest Development lots regardless of whether the addendum is construed as a license or an easement.
Like the runway-parallel taxiway tracts, the fee assessment provision also does not identify Kelly Drive, Douglas Drive, and other common areas explicitly as such. But that has no effect on their status. In general, if the property is an access area or not developable for hangars or homes, it's a common area. See Figure 2 below.
Because common areas vary depending on lot location, the AVDCO provision requiring payment of fees to maintain them must be generic. Common areas in your deeds include all four easement tracts: Tract I, Tract II, Tract III, and Tract IV. Deeds to lots in Aero Valley Estates include only three: Tract I, Tract II, and Tract III. Southeast lots include only two: Tracts II and III (1213/111). Edna made a far more general grant of the right to access and use airport common areas to the southwest lots formerly owned by Cole, Fischer, and Waldrop. Cole's and Waldrop's tracts are now Southwest Development Phase 1 and Phase 2 respectively. Instead of identifying common-area tracts by number and metes-and-bounds descriptions, her easement states that the Grantees “shall have the free and uninterrupted use, liberty and easement of passing in, along and over Grantors lands and premises together with the use and enjoyment of all airport facilities and runways of Grantors.” Such wide variations in common-area descriptions make it impractical to include all of them in the provision requiring payment of fees for their proper maintenance.
The runway at 52F is the most obvious common area of the whole airport, just like it is at all other private airport communities. Unlike the relatively minor amenities associated with other common-interest communities (e.g., swimming pools and tennis courts), a runway is the most important amenity of any airport community. No runway, no airport community. Therefore, to even suggest that the runway is not a common area subject to the ACC’s authority seems rather bizarre.
Analysis of Your Claim that the Runway Is Not a Common Area Subject to the ACC’s Authority
We can shed light on this claim and demonstrate its fallacy quite easily. You have somehow convinced yourself that the runway is not a common area subject to the ACC’s authority for two reasons. First, because you believe that nowhere in the runway's chain of title does the ACC appear. This belief is simply false. The north runway extension is part of the 47.5 acres of the northeast addition, which the AVDCO restrictions explicitly identify as restricted property. But what about the original runway that's in the 24.216-acre tract? We'll get there shortly. But think about it: Do you think the ACC could have authority over the north runway extension but not the original runway? Come on ....
Second, you also believe the ACC lacks authority over the runway because the AVDCO restrictions do not use the word “runway” in the provision requiring property owners to pay fees for common-area maintenance. This provision appears in either paragraph 8(b) or 10(b) of the AVDCO restrictions depending on which recording you’re looking at. It states: “a monthly fee ... shall be paid by each property owner to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.”
You believe the common areas in this sentence are limited to Northeast Addition common areas only. This belief is also false. You assume that if the ACC governs the runway, then the provision above would say so explicitly. It does, but you don’t see it because you’re not considering the definition of a common area and not recognizing that common areas vary in their descriptions and scope depending on lot location and when the right to access and use the common area was granted. Thus, AVDCO’s use of the term “common areas” must be generic rather than specific to cover all variations.
Let’s begin with the definition of a common area. A common area is property appurtenant to individually owned lots subject to identical or similar property rights for its access and use.[1] Because the AVDCO deed restrictions apply to all lots within airport boundaries regardless of location, you have to look to specific deeds to determine which property is common property relative to any given lot. For example, the deeds to all your northeast lots include the same easement-granting language and Exhibit “B” contains the same four easement tracts[2]:
“TOGETHER WITH a non-exclusive easement for vehicular access and airport and taxiway purposes including all necessary and desirable appurtenances along, over, under, across and upon the tracts of land described by metes and bounds in Exhibit “B” attached hereto ….
SUBJECT TO RESTRICTIONS executed by Edna Gardner Whyte, Michael J. O’Brien, and John R. Everett, and recorded in Denton County, Texas.
SUBJECT TO EASEMENTS of record.”
Exhibit “B”
Tract I: Kelly Drive, the north cross-over that runs east-west from the middle of Cleveland Gibbs Road to the middle of Aero Valley Estates, then runs north-south through the middle of Aero Valley Estates, and then east-west back to the middle of the parallel taxiway opposite the tetrahedron (wind direction indicator).
Tract II: North runway-safety zone-parallel taxiway extension (195’ x 1273’).
Tract III: Original runway-safety zone with parallel taxiway moved to east side (195’ x 2248’).
Tract IV: Douglas Drive, the interior taxiway/roadway that runs north-south between the middle northeast tract terminating at Kelly Drive to the south and making a 90 degree turn to the west at your lot on the north, then running east-west back to the middle of the parallel taxiway in front of Leslie Bellar's, Stan Price's, and Tim Wade's hangars.
Every lot within airport boundaries includes an identical or similar right to access and use Tracts II and III, including the lots in the Northwest Development. These two runway-parallel taxiway tracts are also appurtenant to all individually owned lots. Therefore, they are common areas by definition.
Now let’s look at the common areas appurtenant to the 0.86-acre lot you acquired from Edna on the west side of the airport between the Triangle Aviation (John Brown) tract and the open T-hangars. Gene Varner granted the runway access and use easement to this tract (1144/179) after Edna conveyed these common areas to him. The “Deed Granting Easement” includes only Tracts II and III as common areas. Tracts I and IV are not appurtenant to it; thus, they are not common areas relative to that tract.
This same theme plays out in every lot within airport boundaries, even in the Northwest Development. As discussed in more detail below, you copied easement Tract II and Tract III from one of your northeast deeds and pasted them into your license agreement. You then sold the license to purchasers of Northwest Development hangars and lots, tacitly claiming that you had the right to sell access to them even though you really had no authority to do so because they were already burdened by AVDCO's easements and restrictions. Even if construed as a license, your Runway and Taxiway Access addendum is still similar to an easement, at least with respect to access and use. Therefore, Tracts II and III are common areas relative to Northwest Development lots regardless of whether the addendum is construed as a license or an easement.
Like the runway-parallel taxiway tracts, the fee assessment provision also does not identify Kelly Drive, Douglas Drive, and other common areas explicitly as such. But that has no effect on their status. In general, if the property is an access area or not developable for hangars or homes, it's a common area. See Figure 2 below.
Because common areas vary depending on lot location, the AVDCO provision requiring payment of fees to maintain them must be generic. Common areas in your deeds include all four easement tracts: Tract I, Tract II, Tract III, and Tract IV. Deeds to lots in Aero Valley Estates include only three: Tract I, Tract II, and Tract III. Southeast lots include only two: Tracts II and III (1213/111). Edna made a far more general grant of the right to access and use airport common areas to the southwest lots formerly owned by Cole, Fischer, and Waldrop. Cole's and Waldrop's tracts are now Southwest Development Phase 1 and Phase 2 respectively. Instead of identifying common-area tracts by number and metes-and-bounds descriptions, her easement states that the Grantees “shall have the free and uninterrupted use, liberty and easement of passing in, along and over Grantors lands and premises together with the use and enjoyment of all airport facilities and runways of Grantors.” Such wide variations in common-area descriptions make it impractical to include all of them in the provision requiring payment of fees for their proper maintenance.
The runway at 52F is the most obvious common area of the whole airport, just like it is at all other private airport communities. Unlike the relatively minor amenities associated with other common-interest communities (e.g., swimming pools and tennis courts), a runway is the most important amenity of any airport community. No runway, no airport community. Therefore, to even suggest that the runway is not a common area subject to the ACC’s authority seems rather bizarre.
Although the four easement tracts in your northeast deeds are common areas by definition, they do not exhaust the list of all common areas. That’s why AVDCO’s restrictions state the ACC’s requirement to assess and collect fees “to provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.” Taxiways other than the parallel taxiway and buildings are among the common areas not explicitly identified as such in the deeds. Hence, the need to identify “buildings and taxiways” explicitly as common areas. Other common areas include the safety zones on both sides of the runway and other non-developable areas within airport boundaries. On what basis do you believe otherwise?
Whyte also established the entire ramp area and its associated buildings as part of the airport’s common areas when she conveyed the runway-parallel taxiway-ramp area tracts to Gene Varner in 1980. 1014/46. The terms of AVDCO’s easements also include the ramp area as a common area because the ramp is a member of the set of “all necessary and desirable appurtenances along” the runway-parallel taxiway easement tracts. See e.g., 1002/641 (warranty deed from AVDCO to Hyde-Way, Inc. for T-hangar row 4 in the center northeast section).
As common-interest communities have discovered and the law now requires, a POA owns all common areas so property taxes, insurance, and all other maintenance and operation costs can be distributed fairly among all property owners. Most developers can’t wait to sell enough lots so they can turn over control and title to common areas to a POA. The sooner they can, the better it is for the entire community. That time has long since passed at 52F.
You also knew you misrepresented the ACC’s authority over the runway because, as mentioned above, you created your Runway and Taxiway Access license addendum by cutting and pasting the two runway-parallel taxiway easement tracts (Tracts II and III) directly from the deed to your northeast lots. You now claim that these same tracts are subject to your license agreement when you knew they were easements and you knew your license conflicted with them. Below are images of these tracts from both documents.
Whyte also established the entire ramp area and its associated buildings as part of the airport’s common areas when she conveyed the runway-parallel taxiway-ramp area tracts to Gene Varner in 1980. 1014/46. The terms of AVDCO’s easements also include the ramp area as a common area because the ramp is a member of the set of “all necessary and desirable appurtenances along” the runway-parallel taxiway easement tracts. See e.g., 1002/641 (warranty deed from AVDCO to Hyde-Way, Inc. for T-hangar row 4 in the center northeast section).
As common-interest communities have discovered and the law now requires, a POA owns all common areas so property taxes, insurance, and all other maintenance and operation costs can be distributed fairly among all property owners. Most developers can’t wait to sell enough lots so they can turn over control and title to common areas to a POA. The sooner they can, the better it is for the entire community. That time has long since passed at 52F.
You also knew you misrepresented the ACC’s authority over the runway because, as mentioned above, you created your Runway and Taxiway Access license addendum by cutting and pasting the two runway-parallel taxiway easement tracts (Tracts II and III) directly from the deed to your northeast lots. You now claim that these same tracts are subject to your license agreement when you knew they were easements and you knew your license conflicted with them. Below are images of these tracts from both documents.
The image above is from the warranty deed from AVDCO to Hyde-Way, Inc. for the 2.02 acres where you currently live in the Northeast Addition. It shows two of the four easement tracts shown in Exhibit "B". 1022/644 at 647.
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The image above is from the original Hyde-Way, Inc. Runway and Taxiway Access license addendum. Anyone can see that you merely copied the same runway-parallel taxiway easement tracts from your northeast deed into your license agreement. 1373/787 at 792.
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The runway’s deed history is not the place to look to determine which land is subject to the ACC’s authority. Instead, we look to the deeds and deed restrictions to find that the ACC does, in fact, have authority over the land containing the runway and all other airport common areas. You also know that the ACC delegated its authority to the POA’s board of directors. 2020-120919. On what basis do you now believe the runway is not under the POA’s governing authority? Now let’s address your final claim.
Claim 4: The Northwest Development restrictions cannot be amended for 99 years.
The Fort Worth Court of Appeals rejected your 99-year-before-amendment argument without discussion. Any inquiry regarding deed restriction amendment is a two-step process. Step 1: Are the restrictions amendable? If not, then no further inquiry required. If so, then go to Step 2: Did the property owners amend the restrictions according to their terms?
Justice Meier flew right past Step 1 and landed on Step 2. His opinion states, “Appropriately construed, the deed restrictions are amendable by a majority of the then record property owners who are subject to each set of preexisting deed restrictions. ... The properties contained in the Northwest part of the Airport are burdened by what appears to be a single set of deed restrictions (HW 1208/944), and by our calculations …, over 50% of the owners subject to that set of deed restrictions approved the IDRs.” Hyde v. Nw. Reg’l Airport Prop. Owners Ass’n, 583 S.W.3d 644, 650 (Tex. App.—Fort Worth 2018, pet. denied). Only one conclusion follows: Justice Meier necessarily rejected the “can’t-amend-for-99-years” argument. Here’s why.
Whether 30 years, 99 years, or any other number of years, this value originally established when a development’s restrictions would expire. If the property owners did not take affirmative action to amend or extend them, they were gone. Unaware that their restrictions would automatically expire, many communities lost their restrictions when they wanted to keep them. To avoid this undesired outcome, the initial term in many deed restrictions now identifies when automatic extensions begin. Hawkins v. Morrison, No. 03-09-00364-CV, 2010 Tex. App. LEXIS 8472, footnote 1 (Tex. App.—Austin Oct. 19, 2010) (relying on Restat 3d of Prop: Servitudes, § 6.10, cmt. b (3rd 2000)).
The AVDCO restrictions reflect this change and your restrictions merely copied it. 1002/363; 1208/944 respectively. So, despite your claims, the initial term has nothing to do with amendment. The only caveat is if the restrictions include an initial term followed by a specific amendment window. Neither the AVDCO nor Hyde restrictions include such a window. See Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 268 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
In 2015, Mitch pointed out in one of his presentations that a court’s primary duty in interpreting what estate a deed conveys is to ascertain the intent of the parties. You then point out that it was your intent that your restrictions could not be amended for 99 years. So why doesn’t your intent count? What you’re missing is that a court looks to objective rather than subjective intent. Courts interpret documents based on the meaning of the language in the document (objective intent), not what someone says he intended (subjective intent). Courts will allow extrinsic evidence of intent if the language is ambiguous. “In construing an unambiguous contract or in determining whether an ambiguity exists, courts may not seek the parties’ intent beyond the meaning the contract language reasonably yields when construed in context.” URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018).
Here, both the trial court and the Fort Worth Court of Appeals found that the amendment clause in both the AVDCO restrictions and your modified copy of them is unambiguous. Thus, your subjective intent doesn’t matter. But even if your restrictions expressed an objective intent not to be amendable for 99 years, that still would not fly because (1) 99 years fails the reasonableness test and (2) 99 years would materially change the burdens on the members of the community by creating the potential for contradictory amendments. Besides, some versions of your restrictions impermissibly imposed by Dean Henry and others did not change 30 years to 99 years like you did, suggesting that your attempt to apply 99 years to amendment really has no basis. These restrictions were invalid anyway either because the lots were already under the AVDCO restrictions or they impermissibly changed the burdens on the members of the community.
You made a similar mistake when you claim that you intended to restrict Northwest Development lots to aviation-oriented activities. Here’s what you wrote: “Premises are restricted to commercial, sales, warehouse and aviation oriented activities only.” You have told many people that this language prohibits anything but aviation oriented activities. But it doesn’t. Under this language, Northwest Development hangars could be used for any kind of commercial, sales, or warehouse activities. Aviation-oriented activities were just one type of activity in the list. This is yet another example of the mistakes made when you act as your own lawyer.
Given these facts, you still play on people’s ignorance. The education campaign the Board embarked on in 2014 and 2015 went a long way to dispel your misinformation, but many properties have changed hands and you’re giving new and prospective owners information either not supported by the facts or out of context.
Board members and property owners have heard your story many times about how you were among a room full of squabbling property owners who couldn’t agree on anything, yet they managed to accept your license scheme as if it would be a great savior because of your claim that you could accept liability for any damages incurred on the airport. Why you would want to do this remains a mystery. But you know your claim is incorrect because you can’t make the liability for failure to maintain an easement disappear that easily.
An easement holder can modify common-law duties and liabilities by contract. But if the easement is non-exclusive, then all easement holders would likely have to agree to the modification. You never came close to reaching unanimous agreement on your licensing scheme. Furthermore, most people have no appreciation for the profound differences between an easement and a license. But you do. Airport property owners who also know the differences rejected your attempt to impose a license on them. Like your empty promise to keep the airport properly maintained, these property owners also recognized that your claim to accept liability for damages was likely just as empty. Let’s now turn to your role as developer.
Is Hyde-Way, Inc. a Developer Among Several Others or a Builder Among Several Others?
You’ve told us many times that you were among 13 developers of the airport. Even if true, your acquisition of common areas gave you no power to vary assessment obligations within the community, materially change the character of the development, or the burdens on existing community members. Rest (3d) Prop: Servitudes, § 6.21; Flescher v. Oak Run Assocs., 111 So. 3d 929, 933 (Fla. App. 2013). Provisions in your restrictions and the entire Runway and Taxiway Access license could not violate these rules more egregiously. In addition to creating confusion and uncertainty, you attempt to split the airport’s governing authority and prevent distribution of maintenance obligations fairly. Add these facts to never having a budget on which to base license fees and we reach an unavoidable conclusion: the contradictory provisions in your restrictions and the Runway and Taxiway Access license were doomed from day one. You know it, you admit it, but you continue promoting the illusion anyway. Please explain.
But if it’s not true that you stepped into Whyte’s shoes as the airport’s developer (and neither did any of the others), then you are merely a property owner who has grossly overstepped his bounds. So let's test that claim. A builder within a community is not the same thing as a developer. Their respective duties to the community are vastly different. The developer of a common-interest community has a duty:
(1) to use reasonable care and prudence in managing and maintaining the common property; (you’ve never fulfilled this duty)
(2) to establish a sound fiscal basis for the association by imposing and collecting assessments and establishing reserves for the maintenance and replacement of common property; (you’ve never fulfilled this duty)
(3) to disclose the amount by which the developer is providing or subsidizing services that the association is or will be obligated to provide; (you’ve never fulfilled this duty)
(4) to maintain records and to account for the financial affairs of the association from its inception; (you’ve never fulfilled this duty)
(5) to comply with and enforce the terms of the governing documents, including design controls, land-use restrictions, and the payment of assessments; (you’ve not only never fulfilled this duty, but you’re also one of the most frequent violators)
(6) to disclose all material facts and circumstances affecting the condition of the property that the association is responsible for maintaining; and (you’ve never fulfilled this duty)
(7) to disclose all material facts and circumstances affecting the financial condition of the association, including the interest of the developer and the developer’s affiliates in any contract, lease, or other agreement entered into by the association. (you’ve never fulfilled this duty)
Restat 3d of Prop: Servitudes, § 6.20 (3rd 2000). A builder has none of these duties. As noted, you have not fulfilled any of these duties and neither did any of the others you claim were developers. Therefore, it would appear that neither you nor any of the others could be developers in the eyes of the law. Furthermore, just because you added acreage to the airport and copied AVDCO’s restrictions with material conflicting changes does not make you a developer. The acquisition of common areas by any of your entities during the development period also does not make you a developer.
Anyone claiming to be a developer can be held liable for failure to fulfill a developer's duties. Because you’ve never fulfilled any developer duties, wouldn't it be more accurate to describe Hyde-Way, Inc.'s role as merely one of several builders within the community? On the other hand, if you insist on asserting a developer’s status, then on what basis do you expect to avoid liability for failure to fulfill a developer’s duties?
Since AVDCO had already turned over control of the airport’s common areas to the ACC, your claim to have exclusive control over them represents nothing more than an aberration that just needs to be fixed.
Texas has adopted identical or substantially similar rules as those recited above. Like Texas, several other states have not adopted the Restatement as law but nevertheless routinely rely on its rules and illustrations for guidance. See e.g., Gables at Sterling Vill. Homeowners Ass’n v. Castlewood-Sterling Vill. I, LLC, 2018 UT 4, 417 P.3d 95; Zyda v. Four Seasons Hotels & Resorts, No. CIVIL 16-00591 LEK, 2018 U.S. Dist. LEXIS 166845 (D. Haw. 2018); Vill. at Deer Creek Homeowners Ass’n v. Mid-Continent Cas. Co., 432 S.W.3d 231, 236 (Mo. Ct. App. 2014); Laurel Rd. Homeowners Ass’n v. Freas, 191 A.3d 938, 950 (Pa. Commw. Ct. 2018). Let’s turn now to your license agreement.
As a practical matter, the license has been dead for a long time anyway due to the number of easements you granted to the lots acquired in the settlement agreements with First Interstate Bank (2547/228; 2547/244; 2547/254) and Lewisville National Bank (706/215). In the First Interstate Bank settlement agreement in early 1989, the Bank allowed you to keep the airport’s primary common areas in exchange for you granting runway access and use easements to all the lots the Bank acquired and all lots or access areas that Hyde-Way, Inc. would ever acquire in the future. .
It looks like you tried to defeat that agreement by subsequently forming three corporations and using them to buy and sell hangars rather than using Hyde-Way, Inc.: Rotor-Dyne, Inc. (formed in 1989 in Texas); Dreamships, Inc. (formed in 1990 in Texas); and Flight Data, Inc. (formed in 1991 in Nevada). Of these three corporations, Dreamships has been most active. County records show Dreamships as the grantee of 21 hangars/lots and the grantor of 15.
But if the license is
Your attempt to take control of and apply a license to easements and other common areas already governed by the ACC is one reason why a “first in time, first in right” rule exists. This rule resolves conflicting claims on the same property. World Help v. Leisure Lifestyles, 977 S.W.2d 662, 668 (Tex. App.—Fort Worth 1998, pet. denied) (“In a contest over rights or interests in property, ordinarily the party that is first in time is first in right.”)
It’s time to wrap this up. Everything AVDCO did to establish the airport as a common-interest community occurred before you arrived. There was nothing you could have done to change that short of buying every lot within airport boundaries under the same entity name and thus merging all the easements. As it stands now, your ownership of lots in your personal capacity puts you in the same dominant-/servient-estate relationship with airport common areas as all other property owners and with the same duty to pay the POA's assessments.
Finally, for nearly 40 years your licensing scheme has accomplished nothing but pitting one property owner against another while you've allowed the airport to deteriorate to unsafe and practically unusable conditions. We believe that’s a bad business plan. Only one entity can administer the benefits and burdens of common-area easements. Like every other development of its kind, that entity should be a POA. A POA is the most workable and efficient governing structure. It’s fair, it’s accountable, it’s followed by thousands of developments, and it works. And that’s why the formation of a POA and the duty to transfer common areas to it are required under common-interest community rules. The problem a Tennessee court solved in Innerimages, Inc. v. Newman, 579 S.W.3d 29 (Tenn. Ct. App. 2019) is strikingly similar to ours. Like the developers of other Texas private airports--e.g., Propwash and Aero Country--you have the same duty to transfer common areas to the POA. All the discord would vanish the instant you fulfill that duty. We could then get on with the task of prioritizing and fixing infrastructure badly in need of repair.
The Board has repeatedly expressed its desire to resolve all differences without judicial intervention. You’ve agreed but then backed out every time. Glen, we’ve got to push forward. We have all the tools necessary to make this a successful aviation community. Once again, we request that you sit down with us and make an honest attempt to work through whatever issues you believe prevent the POA from governing and operating the airport.
Sincerely,
The Board of Directors
Mitch Whatley, President
Steve Whatley, Vice-President
Larry Martin, CPA - Treasurer
Mike Welch - Secretary
Eric Branyan - Member
Mike Love - Member
Carey Sharp - Member
[1] Chapter 82 of the Texas Property Code.
[2] Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471 (Tex. 2019); Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274 (Tex. 2018); Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016); Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002); Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 534 S.W.3d 558 (Tex. App.—San Antonio 2017); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex. 1962).
[3] Hyde v. Nw. Reg’l Airport Prop. Owners Ass’n, 583 S.W.3d 644, 652 (Tex. App.—Fort Worth 2018, pet. denied).
[4] The Restatement arranges the words somewhat differently but both arrangements capture the same meaning. According to the Restatement, “common property” means property rights of an identical or similar kind held by individual owners as appurtenances to the individually owned lots. Restat (3d) Prop: Servitudes, § 6.2.
[5] 1002/633; 1002/641; 1022/644.
Claim 4: The Northwest Development restrictions cannot be amended for 99 years.
The Fort Worth Court of Appeals rejected your 99-year-before-amendment argument without discussion. Any inquiry regarding deed restriction amendment is a two-step process. Step 1: Are the restrictions amendable? If not, then no further inquiry required. If so, then go to Step 2: Did the property owners amend the restrictions according to their terms?
Justice Meier flew right past Step 1 and landed on Step 2. His opinion states, “Appropriately construed, the deed restrictions are amendable by a majority of the then record property owners who are subject to each set of preexisting deed restrictions. ... The properties contained in the Northwest part of the Airport are burdened by what appears to be a single set of deed restrictions (HW 1208/944), and by our calculations …, over 50% of the owners subject to that set of deed restrictions approved the IDRs.” Hyde v. Nw. Reg’l Airport Prop. Owners Ass’n, 583 S.W.3d 644, 650 (Tex. App.—Fort Worth 2018, pet. denied). Only one conclusion follows: Justice Meier necessarily rejected the “can’t-amend-for-99-years” argument. Here’s why.
Whether 30 years, 99 years, or any other number of years, this value originally established when a development’s restrictions would expire. If the property owners did not take affirmative action to amend or extend them, they were gone. Unaware that their restrictions would automatically expire, many communities lost their restrictions when they wanted to keep them. To avoid this undesired outcome, the initial term in many deed restrictions now identifies when automatic extensions begin. Hawkins v. Morrison, No. 03-09-00364-CV, 2010 Tex. App. LEXIS 8472, footnote 1 (Tex. App.—Austin Oct. 19, 2010) (relying on Restat 3d of Prop: Servitudes, § 6.10, cmt. b (3rd 2000)).
The AVDCO restrictions reflect this change and your restrictions merely copied it. 1002/363; 1208/944 respectively. So, despite your claims, the initial term has nothing to do with amendment. The only caveat is if the restrictions include an initial term followed by a specific amendment window. Neither the AVDCO nor Hyde restrictions include such a window. See Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 268 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
In 2015, Mitch pointed out in one of his presentations that a court’s primary duty in interpreting what estate a deed conveys is to ascertain the intent of the parties. You then point out that it was your intent that your restrictions could not be amended for 99 years. So why doesn’t your intent count? What you’re missing is that a court looks to objective rather than subjective intent. Courts interpret documents based on the meaning of the language in the document (objective intent), not what someone says he intended (subjective intent). Courts will allow extrinsic evidence of intent if the language is ambiguous. “In construing an unambiguous contract or in determining whether an ambiguity exists, courts may not seek the parties’ intent beyond the meaning the contract language reasonably yields when construed in context.” URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018).
Here, both the trial court and the Fort Worth Court of Appeals found that the amendment clause in both the AVDCO restrictions and your modified copy of them is unambiguous. Thus, your subjective intent doesn’t matter. But even if your restrictions expressed an objective intent not to be amendable for 99 years, that still would not fly because (1) 99 years fails the reasonableness test and (2) 99 years would materially change the burdens on the members of the community by creating the potential for contradictory amendments. Besides, some versions of your restrictions impermissibly imposed by Dean Henry and others did not change 30 years to 99 years like you did, suggesting that your attempt to apply 99 years to amendment really has no basis. These restrictions were invalid anyway either because the lots were already under the AVDCO restrictions or they impermissibly changed the burdens on the members of the community.
You made a similar mistake when you claim that you intended to restrict Northwest Development lots to aviation-oriented activities. Here’s what you wrote: “Premises are restricted to commercial, sales, warehouse and aviation oriented activities only.” You have told many people that this language prohibits anything but aviation oriented activities. But it doesn’t. Under this language, Northwest Development hangars could be used for any kind of commercial, sales, or warehouse activities. Aviation-oriented activities were just one type of activity in the list. This is yet another example of the mistakes made when you act as your own lawyer.
Given these facts, you still play on people’s ignorance. The education campaign the Board embarked on in 2014 and 2015 went a long way to dispel your misinformation, but many properties have changed hands and you’re giving new and prospective owners information either not supported by the facts or out of context.
Board members and property owners have heard your story many times about how you were among a room full of squabbling property owners who couldn’t agree on anything, yet they managed to accept your license scheme as if it would be a great savior because of your claim that you could accept liability for any damages incurred on the airport. Why you would want to do this remains a mystery. But you know your claim is incorrect because you can’t make the liability for failure to maintain an easement disappear that easily.
An easement holder can modify common-law duties and liabilities by contract. But if the easement is non-exclusive, then all easement holders would likely have to agree to the modification. You never came close to reaching unanimous agreement on your licensing scheme. Furthermore, most people have no appreciation for the profound differences between an easement and a license. But you do. Airport property owners who also know the differences rejected your attempt to impose a license on them. Like your empty promise to keep the airport properly maintained, these property owners also recognized that your claim to accept liability for damages was likely just as empty. Let’s now turn to your role as developer.
Is Hyde-Way, Inc. a Developer Among Several Others or a Builder Among Several Others?
You’ve told us many times that you were among 13 developers of the airport. Even if true, your acquisition of common areas gave you no power to vary assessment obligations within the community, materially change the character of the development, or the burdens on existing community members. Rest (3d) Prop: Servitudes, § 6.21; Flescher v. Oak Run Assocs., 111 So. 3d 929, 933 (Fla. App. 2013). Provisions in your restrictions and the entire Runway and Taxiway Access license could not violate these rules more egregiously. In addition to creating confusion and uncertainty, you attempt to split the airport’s governing authority and prevent distribution of maintenance obligations fairly. Add these facts to never having a budget on which to base license fees and we reach an unavoidable conclusion: the contradictory provisions in your restrictions and the Runway and Taxiway Access license were doomed from day one. You know it, you admit it, but you continue promoting the illusion anyway. Please explain.
But if it’s not true that you stepped into Whyte’s shoes as the airport’s developer (and neither did any of the others), then you are merely a property owner who has grossly overstepped his bounds. So let's test that claim. A builder within a community is not the same thing as a developer. Their respective duties to the community are vastly different. The developer of a common-interest community has a duty:
(1) to use reasonable care and prudence in managing and maintaining the common property; (you’ve never fulfilled this duty)
(2) to establish a sound fiscal basis for the association by imposing and collecting assessments and establishing reserves for the maintenance and replacement of common property; (you’ve never fulfilled this duty)
(3) to disclose the amount by which the developer is providing or subsidizing services that the association is or will be obligated to provide; (you’ve never fulfilled this duty)
(4) to maintain records and to account for the financial affairs of the association from its inception; (you’ve never fulfilled this duty)
(5) to comply with and enforce the terms of the governing documents, including design controls, land-use restrictions, and the payment of assessments; (you’ve not only never fulfilled this duty, but you’re also one of the most frequent violators)
(6) to disclose all material facts and circumstances affecting the condition of the property that the association is responsible for maintaining; and (you’ve never fulfilled this duty)
(7) to disclose all material facts and circumstances affecting the financial condition of the association, including the interest of the developer and the developer’s affiliates in any contract, lease, or other agreement entered into by the association. (you’ve never fulfilled this duty)
Restat 3d of Prop: Servitudes, § 6.20 (3rd 2000). A builder has none of these duties. As noted, you have not fulfilled any of these duties and neither did any of the others you claim were developers. Therefore, it would appear that neither you nor any of the others could be developers in the eyes of the law. Furthermore, just because you added acreage to the airport and copied AVDCO’s restrictions with material conflicting changes does not make you a developer. The acquisition of common areas by any of your entities during the development period also does not make you a developer.
Anyone claiming to be a developer can be held liable for failure to fulfill a developer's duties. Because you’ve never fulfilled any developer duties, wouldn't it be more accurate to describe Hyde-Way, Inc.'s role as merely one of several builders within the community? On the other hand, if you insist on asserting a developer’s status, then on what basis do you expect to avoid liability for failure to fulfill a developer’s duties?
Since AVDCO had already turned over control of the airport’s common areas to the ACC, your claim to have exclusive control over them represents nothing more than an aberration that just needs to be fixed.
Texas has adopted identical or substantially similar rules as those recited above. Like Texas, several other states have not adopted the Restatement as law but nevertheless routinely rely on its rules and illustrations for guidance. See e.g., Gables at Sterling Vill. Homeowners Ass’n v. Castlewood-Sterling Vill. I, LLC, 2018 UT 4, 417 P.3d 95; Zyda v. Four Seasons Hotels & Resorts, No. CIVIL 16-00591 LEK, 2018 U.S. Dist. LEXIS 166845 (D. Haw. 2018); Vill. at Deer Creek Homeowners Ass’n v. Mid-Continent Cas. Co., 432 S.W.3d 231, 236 (Mo. Ct. App. 2014); Laurel Rd. Homeowners Ass’n v. Freas, 191 A.3d 938, 950 (Pa. Commw. Ct. 2018). Let’s turn now to your license agreement.
As a practical matter, the license has been dead for a long time anyway due to the number of easements you granted to the lots acquired in the settlement agreements with First Interstate Bank (2547/228; 2547/244; 2547/254) and Lewisville National Bank (706/215). In the First Interstate Bank settlement agreement in early 1989, the Bank allowed you to keep the airport’s primary common areas in exchange for you granting runway access and use easements to all the lots the Bank acquired and all lots or access areas that Hyde-Way, Inc. would ever acquire in the future. .
It looks like you tried to defeat that agreement by subsequently forming three corporations and using them to buy and sell hangars rather than using Hyde-Way, Inc.: Rotor-Dyne, Inc. (formed in 1989 in Texas); Dreamships, Inc. (formed in 1990 in Texas); and Flight Data, Inc. (formed in 1991 in Nevada). Of these three corporations, Dreamships has been most active. County records show Dreamships as the grantee of 21 hangars/lots and the grantor of 15.
But if the license is
- construed as an easement as the courts did in Walchshauser v. Hyde and Hyde v. Hawk and
- we ignore its empty maintenance promise and “license” fee that has no budgetary basis and
- your claims of having any authority greater than any other property owner,
Your attempt to take control of and apply a license to easements and other common areas already governed by the ACC is one reason why a “first in time, first in right” rule exists. This rule resolves conflicting claims on the same property. World Help v. Leisure Lifestyles, 977 S.W.2d 662, 668 (Tex. App.—Fort Worth 1998, pet. denied) (“In a contest over rights or interests in property, ordinarily the party that is first in time is first in right.”)
It’s time to wrap this up. Everything AVDCO did to establish the airport as a common-interest community occurred before you arrived. There was nothing you could have done to change that short of buying every lot within airport boundaries under the same entity name and thus merging all the easements. As it stands now, your ownership of lots in your personal capacity puts you in the same dominant-/servient-estate relationship with airport common areas as all other property owners and with the same duty to pay the POA's assessments.
Finally, for nearly 40 years your licensing scheme has accomplished nothing but pitting one property owner against another while you've allowed the airport to deteriorate to unsafe and practically unusable conditions. We believe that’s a bad business plan. Only one entity can administer the benefits and burdens of common-area easements. Like every other development of its kind, that entity should be a POA. A POA is the most workable and efficient governing structure. It’s fair, it’s accountable, it’s followed by thousands of developments, and it works. And that’s why the formation of a POA and the duty to transfer common areas to it are required under common-interest community rules. The problem a Tennessee court solved in Innerimages, Inc. v. Newman, 579 S.W.3d 29 (Tenn. Ct. App. 2019) is strikingly similar to ours. Like the developers of other Texas private airports--e.g., Propwash and Aero Country--you have the same duty to transfer common areas to the POA. All the discord would vanish the instant you fulfill that duty. We could then get on with the task of prioritizing and fixing infrastructure badly in need of repair.
The Board has repeatedly expressed its desire to resolve all differences without judicial intervention. You’ve agreed but then backed out every time. Glen, we’ve got to push forward. We have all the tools necessary to make this a successful aviation community. Once again, we request that you sit down with us and make an honest attempt to work through whatever issues you believe prevent the POA from governing and operating the airport.
Sincerely,
The Board of Directors
Mitch Whatley, President
Steve Whatley, Vice-President
Larry Martin, CPA - Treasurer
Mike Welch - Secretary
Eric Branyan - Member
Mike Love - Member
Carey Sharp - Member
[1] Chapter 82 of the Texas Property Code.
[2] Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471 (Tex. 2019); Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274 (Tex. 2018); Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016); Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002); Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 534 S.W.3d 558 (Tex. App.—San Antonio 2017); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex. 1962).
[3] Hyde v. Nw. Reg’l Airport Prop. Owners Ass’n, 583 S.W.3d 644, 652 (Tex. App.—Fort Worth 2018, pet. denied).
[4] The Restatement arranges the words somewhat differently but both arrangements capture the same meaning. According to the Restatement, “common property” means property rights of an identical or similar kind held by individual owners as appurtenances to the individually owned lots. Restat (3d) Prop: Servitudes, § 6.2.
[5] 1002/633; 1002/641; 1022/644.