December 28, 2018
A copy of Chris's email of today to Bill Cooper, Chairman of the HOA, was forwarded to me. I asked Chris for permission to put it on the blog so all homeowners can read his views. This was his reply:
Hi Ken
I have not problem in you sharing the mail because it is what it is and in my view we need to protect the value what all of us as a team created here through years and years of blood, sweat and guts. And protect what we promised and sold to our buyers. Regards, CM
Here is his email:
From: Chris Mulder <chris@cmai.xx.xx>
Date: 28 December 2018 at 09:30:19 SAST
To: "Graham Power (Mailbox)" <gap@powergrp.xx.xx>, Admin - TIHOA <admin@tihoa.xx.xx>, Gina Oosthuizen <tihoa@tihoa.xx.xx>
Subject: TRUSTEES¹ EXPLANATION OF THE DECISION TO OFFER INCREASED FAR (BULK) TO REGULARISE THE ESTATE
Hi Paul /GinaCan you please pass this mail on to Bill Cooper.I do not have his email address and I promised Graham Power I will send my mail this morning since we have a meeting scheduled there at the TIHOA offices at 12 noonCMDear Sir
Allow me some comments, as a member and Home Owner on your IMPORTANT NOTICE TO MEMBERS which apart from some very general and fleeting statements are flawed in one major aspect of your point of departure.
It took our office (CMAI) and a team of various professionals, coordinated by myself, all of 8 (eight) years 1990-1998 to get the Thesen Islands Development approved, including ALL of the Design Guidelines, Regulations Plans, Urban Regulations and every single site plan for all the stands to be sold on Thesen Islands. Barlows then still owned the Island.
This level of detail planning and design, where every single erf to be sold was regulated by a set of plans clearly explaining the Bulk, mandated single storey requirements, coverage, setback lines , building lines , parking areas, and in some cases access, and fence and garden walls or a mandated tower requirement where applicable was unprecedented in SA at the time. In other words we created a set of purpose made Special zoning Parameters to be rolled out and be mandated/required by the Conditions of Approval in the building/creation of Thesen Islands.Once we started selling, all of these plans for every single sale that was made were signed and agreed to by all of us who purchased stands on Thesen Island in addition to the Sales Agreement and the Constitution. Thus everyone who purchased a stand here, knew exactly what she or he bought into and what the rules are/were. Most people who bought here, did so exactly because of the to be entrenched Zoning parameters promised by the Thesen Island Development Company (TIDC) established 1998/1999.These guidelines and regulations, and especially the building period were, on several occasions unsuccessfully legally challenged by certain Home Owners over the first 5 or 6 years because the relevant documents were crystal clear and enforceable under the SPECIAL ZONING or Special Zoning Parameters that was created for and approved for Thesen Islands and applied for by this office over the above said 8 year period of 1990 to Dec 1998.
We officially received the said approvals with 101 Conditions to comply with attached to it. During the two ensuing two years before TIDC commenced with construction, the 101 Conditions were meticulously ticked off one by one and complied with.
We indeed obtained Special Zoning parameters outside the Knysna Zoning Scheme for Thesen Islands based inter alia on the following:1. Our Streets are specially cambered and narrower and more varied than anywhere else in Knysna or most Municipalities ….. with a complete system of integrated and dedicated walkways and “pedestrian sheds” found nowhere else . Hence our streets are PRIVATE and have been kept private and not ceded back to the Municipality, like we ( the Development company) ceded back the water and sewer and electricity to the Municipality. We could not have achieved this if we did not obtain the SPECIAL ZONING parameters
2. Our Stormwater management system in the streets are site specific and specially approved.
3. All our open spaces are private and managed as such under the Special Zoning parameters agreed on and thus not managed under the Knysna Zoning Scheme, as are the canals.
4. Our regulations and specifications about the mandatory picket fences , the locally made street lights, bollard lights, street furniture, trash receptacles, and signage, all designed by CMAI ( all made locally by local artisans here in Knysna and designed labour intensively to create the max amount of jobs) also required the SPECIAL ZONING parameters and Municipal approval because it is not STANDARD Municipal issue and hence cannot be seen as a part of the Knysna Zoning Scheme
5. Stand sizes of 264 to 300 sq meters and even 400 sq (almost 20 % of the houses on Thesen Islands) meters were basically unheard of or non-existent in the Municipal area except in the Townships at that time, and we thus had to obtain SPECIAL ZONING parameters and special approval for these erven all of them with unique setbacks and regulation plans . I personally sat and negotiated with the then Town Engineer the fact that three of these smaller stands, amount to one equivalent erf in the Municipal area and thus had to be incorporated as such in SPECIAL ZONING Parameters for Thesen Islands.
6. Finally, the fact that we had a full regulation plan, complete site plan, and an Urban Regulation plan plus a precinct plan for every single stand on every island spelling out exactly what and how much can be built on each stand was unique and totally new in the country at that time and we obtained the SPECIAL ZONING parameters and status and approvals based on this for every phase and for every single island. Special Zoning parameters were created for the individual islands, as for example for the houses on Saffron Island with all their living rooms cantilevered over the water, the row houses on Q island, the gantry houses and.. and.. and. There are many examples of this to prove the point that we obtained Special Zoning parameters outside of the Knysna zoning Scheme !
7. The list requiring the SPECIAL ZONING parameters can be expanded to include the Parkland and the previously contaminated land and the two Core Contaminated Zones, the bird park, the dog run, etc.
8. If we did not struggle for eight years to obtain a SPECIAL ZONING designation in order to control our own destiny and tried to NOT get regulated within the normal Knysna zoning Scheme to a large extent, we could have simply submitted a sub-divisional town planning plan showing 605 empty erven ( that is TIHOA and TICOA) like all other applications and subdivisions in any town or any other town in this country. We could have just mentioned the number of stands and only the stand or erf sizes, and let the Knysna Zooming Scheme apply. Then Thesen Islands was going to be, or would have been “ just another suburb “………. and we would have now lived in the sprawl of a mundane “Suburbia” where it is basically a free for all bar a couple of standard Municipal issues.All of these documents and stamped approvals and the entire set of stamped (by the Municipality) regulating plans, urban regulations (Hard copies) for all the houses were officially handed over to the HOA by myself and was in possession of the HOA and used at the DRP meetings for years until Wiekie Smit died.
Are these documents still in possession of the HOA ??. ………or what happened to them? If you still have them , you can or should work through them to better understand the process and the steps of applying for more bulk.This was how we started and built out most of the 512 single residential houses and 56 Apartments (also Special Zoning Parameters) on the Island and how it was approved and stamped by the DRP.
At that time, myself and Gray Rutherford was on the DRP and sat in and signed off the plans at EVERY DRP meeting . We appointed Edu Lohan as the administrator plus a member of the Trustee body and two or three architects to serve on the DRP.
During these first 8 years when most of the houses were built, not a single plan was approved if the plan did not conform with all the guidelines and coverage and bulk allowed.
If your general statement that there are a considerable amount of houses over bulk and wrong calculations can be believed at all, then it should be easy to check why and how the “mistakes” originated and then the Architect involved who erroneously or purposely stated the wrong calculations
The DRP could not and cannot “ re-measure” the plans then because the technology was not that easy at the time. We had to rely on the submitting Architect’s integrity. My view is that some people, of course, built on illegally after the plans were approved. It happens everywhere.
I am aware of the fact that these people were then pushing and exerting pressure on the DRP to “use” the Knysna zoning Scheme to help them win their battle with the illegally built on additions with the HOA. In a fair amount of cases during the past 5-6 years, the DRP were even overruled by the Trustees to accommodate these people who built illegally and were pushing for the Knysna Zoning Scheme to be the guiding document .
Partially this is the case again NOW and in the past year and the same school of thought is surfacing again ……. Certain home owners absolutely WANT the Knysna Zoning Scheme to be the controlling document because it serves their purpose of legitimising the increase of illegally built or newly approved bulk etc.In your email letter /Notice to Home Owners below you are now stating repeatedly subliminally and erroneously and inferring that the Knysna Zoning scheme is the controlling document.
This phenomena reared its head for the first time some 4 or 5 years ago when Wiekie Smit passed away and one Henk Booysen arrived on the scene and was appointed as Estate Manager knowing absolutely nothing about the history of the Special Zoning Parameters approved for Thesen Island when he arrived here and never bothered to find our either. He must have misled a lot of Trustees too and he left here, still not understanding the situation.
At that time very few people in the Trustee body fully understood or wanted to accept the decisions and the role of the DRP. Nor did they want to understand or accept it or realise the power we really have in our hands because of the fact that we have SPECIAL ZONING parameters approved and need not to comply with the Knysna Zoning Scheme in most aspects.
Neither did they understood what the knock on effect is going to be by Trustees overruling the DRP ………which did happen often.
Everyone in the Municipal Planning section was in 2012/13 , and still is now, NEW in town !.... and had no clue what and how Thesen island was approved and the Special zoning parameters entailed.
On invitation from the Town Planning Section , I spent two hours there, three months ago ,“lecturing” the Chief Town Planner and the five Town Planners working there now…..all of them not living more than three years in Knysna, on these Special Zoning parameters. They then asked me to draw up a set of Special Operating Procedures for them on the planning and approval processes followed on approving plans at Thesen Island. Which I did and hopefully now they understand what the procedures are and should be. They cannot even find their set of stamped and approved plans or are not motivated enough to search for it, or even familiarise themselves with the guidelines and the approved Zoning parameters and status.
During the last five or six years very few people in the HOA seems to have had a clue or understood the zoning parameters either, since they kept harping on the Knysna Zoning Scheme and it will be interesting to go back on the DRP minutes and determine how many times the Trustees overruled the DRP in the past 6 years.
? Sensory Value …the sight, sound, touch feel and taste of the e placeIf the HOA can find their set of stamped (now apparently missing) since the arrival of Henk Booysen and approved guidelines and Zoning Documents, you might make your task of getting the new proposal as circulated by TIHOA easier to get approved.The Town Planner you referred to in the attached document plus the Municipal official responsible for approving plans came and visit me some 10 weeks ago when this current TIHOA proposal first surfaced or was mooted and asked MY opinion on the increase of bulk, because the Planner and I are seemingly the two only people around or easily accessible that knows what was submitted and what was approved.I told them, and they agreed with me when they left, that in principle I have no objection to a well-considered bulk increase as long as we DO not increase the coverage.It is however a major departure from our design guidelines in that it touches at the core of what was created here and what we all signed for and we all bought into.Thesen Island today is a result of these guidelines and regulations that were implemented rigorously throughout its forming years and building years.The Enduring Value created on Thesen Island we all gladly share ……..manifests itself in the :? Economic Value …..that is continuous rising in the property values (basically trebled in ten years) here……. the yearly rising in rental income……..this would not have happened if we lodged our application under the Knysna Zoning Scheme? Socio Economic Value …….which manifests itself in the way residents find enjoyment of the use of the open spaces and the spaces between buildings, the walkways, parks and visit and socialise there
? Environmental Value …….the fact that Thesen Islands continue to win International awards 18 years post the advent of construction for the Wildlife and Habitat Creation ,is extremely significant and important in upholding and building on the Enduring Value created here.Because of all of the above there is an Enduring Value Component here on Thesen Island found in very few places in the World.We must protect this above anything else.
Hence it is extremely important that we should :
- Obtain approval at the AGM or a Special AGM from the residents to Change the bulk and explain that this is a one-time effort.
- Then prepare our application accordingly with the said documented Home Owners approval and clearly spelling out exactly what is going to be changed as a ONCE off……. Not under the Knysna Zoning Scheme but under our own Special Zoning Parameters
- Ensure that a couple of years from now we are not faced with yet another similar demand.
- Then submit our application to the Municipality for approval .
- Then once Municipal approval has been given, the DRP can do its job to approve new submissions accordingly. Not the other way around .
As it is done, or proposed now, my view is that the HOA via the DRP are, in approving alterations to building plans and stamping the plans with the new bulk numbers for approval, are ultra vires. (ultra vires: beyond one's legal power or authority)
You need the HOA members approval first spelling out in detail what the allowed extra bulk is for every stand and that it impacts the very basic core of what was signed for by all. This is NOT a minor amendment that can be ruled on by Trustees alone.
Then you need to submit to the Municipality an application with motivation, and a document spelling out in detail what the allowed extra bulk is for every stand and apply for approval by the Municipality.
Once this approval has been obtained and approved by the Municipality which is “not a mere formality “ as stated by you in the Newsletter the new plans can be approved.RegardsChris
