MichaelA8 (California)
Posts: 3
Posts: 3
Posted:
I have a couple questions regarding the enforcement of rules. I have been fined by our current Board for violations that two of the five Board members are in violation of regularly regarding dogs: being on leashes or nuisance barking. Our rules do NOT associate any fines for the Pets classification of rules, but the Board fined us under it anyway. Of interesting note is that the leash "rule" states that pets should be on leashes in the common area. There is no actual requirement (must instead of should).
The only way I can see the Board being able to assess a fine is under our "Nuisance" rule - which requires that there be two written complaints to the Board prior to the Board being able to take corrective action. If there were actually two written complaints, one of them was assuredly from a Board member herself. If this is the case, should this Board member be excused when voting on determining if they are going to impose a fine? The notice of fine lists both, but the description of the cause lists only pet issues. (There is a separate Nuisance clause under the Pets category, but the only possible resolution stated under it is a recommendation that the person suffering the nuisance call the local sheriff - which she did.)
Regardless of either of the two above issues, the issue that really irritates me is the that under our rules enforcement policy the process is somewhat vague in that it states that "For most violations, a warning letter/notice will be sent to the member with a request for immediate compliance or explanation of extenuating circumstances. For major infractions, such as the cutting of trees, a fine may be levied for the first violation after a hearing." Now I would have to argue that since the fine schedule does not include any fines under the Pets category, in no way can it be considered a major violation. In addition, the Nuisance rule has the second lowest possible fine associated with it ($100 when fines range from $50 to $500), again leading me to the non-major violation conclusion. We never received a written notice on this.
The real topper of it all is that the Board also fined us $500 for "repeated non-compliance of 3.3 Littering & Garbage." Again, we never received a warning notice and the fine schedule states 3.0 related fines are $150 but Repeated Violations and Non Compliance is a $500 fine. To begin with on this one, the rule states:
"Littering of any kind is prohibited. The scattering dumping, burying or burning of trash on private or common area land is not allowed at any time. Trash should be stored in weather, rodent , and animal resistant containers away from public view. Trash must not be left to accumulate and should be removed on a weekly or bi-weekly basis. If scheduled County trash pick-up is utilized, containers may not be left near the road for more than 24 hours."
Now I have been taking my trash to the curb every week for County pick-up - the maximum amount allowed by the service - for the past two months, since the snow melted. I even received a warning from the service that I was loading the cans a little heavy. There is no trash "accumulating". My next door and across the street neighbors both have litter all about their yards (the one next door is bank owned and has barbed wire and lumber with nails sticking out all over). I have clutter - not trash.
We are being singled out because I call the Board on their overstepping their legal bounds and identify when they break the law, most notably, the Davis-Stirling Act. Most recently this was when they tried to create a special assessment on each lot in excess of our yearly dues amount due and payable before the next general meeting and in force for the next five years. It is retaliatory and it is being applied arbitrarily - well not really arbitrarily - there's nothing arbitrary about who they are fining. I have read numerous opinions on how a Board can't act arbitrarily, but I can't find any concrete statute that states such a fact. There is nothing I've found (and I have read all the DS Act several times and much of the Corp and Civil Codes) requiring the Board to act equally to everyone. Morally, yea, they should. But what if they don't? (Sorry for the long post, I'm just really heated over this.)
The only way I can see the Board being able to assess a fine is under our "Nuisance" rule - which requires that there be two written complaints to the Board prior to the Board being able to take corrective action. If there were actually two written complaints, one of them was assuredly from a Board member herself. If this is the case, should this Board member be excused when voting on determining if they are going to impose a fine? The notice of fine lists both, but the description of the cause lists only pet issues. (There is a separate Nuisance clause under the Pets category, but the only possible resolution stated under it is a recommendation that the person suffering the nuisance call the local sheriff - which she did.)
Regardless of either of the two above issues, the issue that really irritates me is the that under our rules enforcement policy the process is somewhat vague in that it states that "For most violations, a warning letter/notice will be sent to the member with a request for immediate compliance or explanation of extenuating circumstances. For major infractions, such as the cutting of trees, a fine may be levied for the first violation after a hearing." Now I would have to argue that since the fine schedule does not include any fines under the Pets category, in no way can it be considered a major violation. In addition, the Nuisance rule has the second lowest possible fine associated with it ($100 when fines range from $50 to $500), again leading me to the non-major violation conclusion. We never received a written notice on this.
The real topper of it all is that the Board also fined us $500 for "repeated non-compliance of 3.3 Littering & Garbage." Again, we never received a warning notice and the fine schedule states 3.0 related fines are $150 but Repeated Violations and Non Compliance is a $500 fine. To begin with on this one, the rule states:
"Littering of any kind is prohibited. The scattering dumping, burying or burning of trash on private or common area land is not allowed at any time. Trash should be stored in weather, rodent , and animal resistant containers away from public view. Trash must not be left to accumulate and should be removed on a weekly or bi-weekly basis. If scheduled County trash pick-up is utilized, containers may not be left near the road for more than 24 hours."
Now I have been taking my trash to the curb every week for County pick-up - the maximum amount allowed by the service - for the past two months, since the snow melted. I even received a warning from the service that I was loading the cans a little heavy. There is no trash "accumulating". My next door and across the street neighbors both have litter all about their yards (the one next door is bank owned and has barbed wire and lumber with nails sticking out all over). I have clutter - not trash.
We are being singled out because I call the Board on their overstepping their legal bounds and identify when they break the law, most notably, the Davis-Stirling Act. Most recently this was when they tried to create a special assessment on each lot in excess of our yearly dues amount due and payable before the next general meeting and in force for the next five years. It is retaliatory and it is being applied arbitrarily - well not really arbitrarily - there's nothing arbitrary about who they are fining. I have read numerous opinions on how a Board can't act arbitrarily, but I can't find any concrete statute that states such a fact. There is nothing I've found (and I have read all the DS Act several times and much of the Corp and Civil Codes) requiring the Board to act equally to everyone. Morally, yea, they should. But what if they don't? (Sorry for the long post, I'm just really heated over this.)