Bylaw does not conform to county code

Started by SwanB • 12 replies • 2996 views

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SwanB (Washington)
Posts: 199

Posted:

We have an animal control bylaw that does not conform to the county code. The county code requires leash law for the area we are zoned and our bylaw allows both leash and voice control. The board presented this bylaw amendment eliminating the voice control for change three years ago to the membership to vote on as per our bylaws on amending, repealing or making bylaws (requiring a 2/3 vote by the membership) and it failed.
I have checked with various HOA's on the published bylaws and see the section on amending, repealing or making bylaws all have similar requirements for a 2/3 vote by the membership.
What does an HOA do in the matter when their bylaws are less restrictive than city, county, state or federal rules? One piece of advice from another forum was to eliminate the bylaw before it became a matter of being less restrictive which isn't much help.
We have an animal control bylaw because our roads are private and the agency who enforces the county code claims they won't come into our gated, private community to manage our animal control problems.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Swan,

Do you mean leash OR voice control? What exactly is the wording in your Bylaw? The exact word is the key here.
Your documents require a 2/3rds vote to pass an amendment change and that number should not be compared to what other HOA's use. You said that the change failed to pass, therefore the "Voice Control" should still be part of your bylaws. I cannot understand where your bylaw is less restrictive than the County Code. It is MORE restrictive which is legal unless I am not following your explaination.

JeanneK3 (Maryland)
Posts: 562

Posted:

There's no need to change your bylaws as county, state and federal codes always trump any association documents.
Jeanne

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By SwanB on 06/06/2011 12:07 PM

What does an HOA do in the matter when their bylaws are less restrictive than city, county, state or federal rules?

Swan,

Since the common area would be considered private property, it's possible that your Association is not in violation. However, to be certain of this a review of the actual statute, ordinance and the wording in your governing documents should need to be done.

Typically, if there is a conflict between your governing documents and Federal, State, or local laws the law would prevail. However, sometimes the laws defer to the governing documents. Therefore, until you read the actual law you can't be certain. Here is a link to a thread in this forum that discusses how to read the laws:

http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/103015/Default.aspx

Quote:

Posted By SwanB on 06/06/2011 12:07 PM

One piece of advice from another forum was to eliminate the bylaw before it became a matter of being less restrictive which isn't much help.

The concept behind the advice from the other forum was sound. As the membership may amend the governing documents. If your passionate about the issue I would suggest that you ask the Board to place the proposal before the membership again and then you should go door to door with a stack of proxy forms and see if you can be assigned as that persons proxy.

Quote:

Posted By SwanB on 06/06/2011 12:07 PM

We have an animal control bylaw because our roads are private and the agency who enforces the county code claims they won't come into our gated, private community to manage our animal control problems.

This is usually the case if there has not been an attack. As I stated earlier, since the Associations common area is private property they need permission to enter the property.

Again, if you wish to change the rules, the best way is to request that the Board proposes the change and then you should actively solicit proxies from the membership. If the Board won't propose the amendment on their own, you will need to start a petition to call a special meeting. This procedure would be found in your governing documents.

Tim

DonnaS (Tennessee)
Posts: 5,671

Posted:

Swan,
As Jeannie has said, if your Bylaw still allows ONLY voice control, then the City code would be the dominant code. You should send out a chamge to the bylaw, stating that County code requires leashes at all times but until you do, the County leash law prevails. Members need to know what the law is despite what the Bylaws read.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Donna and Jeanne,

It's possible that the leash law only applies to public property. The Associations common area is considered private property. Without reading the law, we don't know how the law is applied.

Tim

SwanB (Washington)
Posts: 199

Posted:

I am on the board and not passionate about the subject. However we have numerous members who are passionate about retaining voice control. I am merely trying to find out how other hoas deal with situations where city, county, state or fed rules are changed and the bylaws no longer conform to those rules.

I really don't see how removing a bylaw before it becomes less restrictive is much help if one isn't aware it is going to become less restrictive so that piece of advice isn't much help. Also, how can a board initiate the removal of a bylaw if the membership must vote on its removal and pass its removal with a 2/3 vote? What conceivable rationale would the board present for its removal that the membership would buy? "It might stop conforming to city, county, state or the feds, so we think we should remove this bylaw."

The county code requires the use of a leash as animal control for dogs in all unincorporated areas of the county except specific zones which we are not zoned. Our animal control bylaw allows both leash and voice control, thereby being less restrictive.

Our bylaw requires any bylaw amended, repealed or made to be passed by a 2/3 vote by the membership at our annual general meeting but does allow the board to initiate amending or repealing a bylaw until the membership can vote on this action at the next annual general meeting.

Granted an HOA could require any kind of percentage in their bylaws for amending, repealing or making bylaws. I referred to other HOAs bylaws using a 2/3 vote because I reviewed the bylaws of four others besides our and each one of their bylaws required a 2/3 vote, like ours.

Geez

SwanB (Washington)
Posts: 199

Posted:

Thank you Jeanne. I hadn't look at the problem in this way. Although it would seem at some point an HOA would want to clean up their bylaws, wouldn't they?

SwanB (Washington)
Posts: 199

Posted:

Tim,
I went to the County Code and the Zoning Department and explained the situation with the county code for animal control in hand. After reviewing who and what our HOA is; both departments said we must have leash law in place and the voice control was not in conformity with county code.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By SwanB on 06/06/2011 12:50 PM

I really don't see how removing a bylaw before it becomes less restrictive is much help if one isn't aware it is going to become less restrictive so that piece of advice isn't much help.

Swan,

I didn't intend to imply that the specific advice from the other forum was sound. I intended to say that the advice to change the governing documents was sound. Some Board members, with way more time on their hands then I have, will actually look at proposed State and local legislation and modify documents prior to the proposals being adopted by the State/County.

Quote:

Posted By SwanB on 06/06/2011 12:50 PM

The county code requires the use of a leash as animal control for dogs in all unincorporated areas of the county except specific zones which we are not zoned. Our animal control bylaw allows both leash and voice control, thereby being less restrictive.

Could you provide a link to this law?

Quote:

Posted By SwanB on 06/06/2011 12:50 PM

Granted an HOA could require any kind of percentage in their bylaws for amending, repealing or making bylaws. I referred to other HOAs bylaws using a 2/3 vote because I reviewed the bylaws of four others besides our and each one of their bylaws required a 2/3 vote, like ours.

Actually this percentage might be mandated by State Corporation laws.
If you consider adjusting this number you should check those laws.

Swan,

You hit on a topic that could easily divide the community. How much of an issue is this to the Association?

Bottom line is, if the leash law does apply to private property, then irregardless of what the bylaws say, the county/local law would control. This is supported in RCW 24.06.095 which states that "The bylaws may contain any provisions for the regulation and management of the affairs of a corporation not inconsistent with law or the articles of incorporation"

Therefore, the Board of Directors would have to contact Animal Control and find out what procedure would be required to allow them onto the property to enforce the laws (leash and other). Typically, all it requires is that the Board must send a letter to a specific department.

My Association only requires 51% of the votes cast to amend the Bylaws.
We have different requirements for amending the CC&RS and the Articles of Incorporation.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By SwanB on 06/06/2011 12:56 PM
Tim,
I went to the County Code and the Zoning Department and explained the situation with the county code for animal control in hand. After reviewing who and what our HOA is; both departments said we must have leash law in place and the voice control was not in conformity with county code.

Oops, looks like we were posting at the same time.

Based on your latest post, I would recommend that the Board does the following:

1. Inform the membership that the Bylaws are in conflict with the local law (cite each of them) and explain that when this happens, the local laws control. Therefore, using voice control in the common area is no longer allowed. (Basically educating the membership)

2. Contact animal control about what they need to enforce the law.

3. Inform the membership that animal control has been authorized to enter the property to enforce the leash law and other laws that they may enforce (tags, etc.)

4. Brace yourself as this issue will not initially go over very well with some of the membership.

5. Propose amending the bylaws to remove the conflict that causes the confusion.

6. Actively solicit proxies so there are enough votes to pass the amendment.

Tim

TimothyE (Virginia)
Posts: 1

Posted:

SwanB,

Most county and/or State leash laws only apply to public property. Public property doesn't include common area in an HOA nor private property. Your HOA can have a more restrictive leash law or no leash law at all; it depends on the layout of your common area. If its fenced, it may be ok to allow dogs to run and chase a ball etc. However, it depends on what the membership wants the area to be used for on a daily basis. The HOA likely wants dogs to be under the positive control of their owners regardless of whether a leash is required. Most animal enforcement officers will not enter private HOA property unless they are in pursuit of a dog from off the property. Also, there may be liability issues if your HOA has a leash law and doesn't enforce it.

Tim

KerryL1 (California)
Posts: 14,550

Posted:

Welcome to the forum, TimothyE. Since the orig. post is quite old, the problem probably has been resolved. For your future contributions, it'll be better to start a new thread.

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