Invalid Amendment Procedure - 10 Years Later

Members of our WA community HOA recently discovered that the approval process for proposed amendments in 2001 was invalid. The amendments required 90% approval from the membership. A single approval instrument was not employed as the Declaration required, individual "ballots" were signed over a three to four month period. In that time frame, before the 90% was exceeded, two properties sold and the signing owners were no longer owners. The required number of affirmative votes by valid homeowners at any one time was not achieved. The Board counted the invalid ballots anyway and declared the amendments approved, certified the results and filed the amended CC&Rs and the certification statements with the County Recorder.

The ballots were never made available for members' review nor maintained in the Association's records. The ballots disappeared for years, but resurfaced in the possession of an Association member who had not been a Board member in the intervening years. The member possessing the ballots was one of the original authors of the amendments that were (much) later found to be objectionable and in conflict with the developers General Plan of Development.

The amendments clearly violated the developers General Plan of Development, but those "details" were kept from the membership at the time of the original proposal. Now, the repercussions of those amendments depriving members of views and Board enforcement of view rights are painfully apparent.

It is nearly ten years now since the invalid amendments were recorded. Are we "out of luck" with respect to having the invalid CC&Rs amendments declared invalid?

Carl,

What were the amendments about? If it was a major land use change, then someone with a lot of money could challenge what was changed but I would just let it go. Would it really matter to make the change now and yes, the statute of limitations must be valid by now.

Please explain what this means.

" Now, the repercussions of those amendments depriving members of views and Board enforcement of view rights are painfully apparent. "

Petunka,

I don't think they can simply declare the amendment null and void because it already has been recorded and on the books for ten years. I'm guessing there is a statute of limitations regarding court challenges (which is what it would take) to declare the amendments null and void. But, someone would have to check their state laws to find out.

We ran into a similar situation here. Amendments were made illegally to our declaration and recorded, but CT state law specifically states that even amendments that were illegally made are binding if a year goes by and they have not been challenged.

However, your idea of writing a new amendment which essentially reverses or repeals the earlier amendment will probably work. Although, if things have been done because of the prior amendment, repealing the prior amendment won't undo those things or declare them non-compliant. You cannot undo history. You can only correct things going forward.

DonnaS, Thanks for the reply. The original CC&Rs guaranteed: 1) "Views are Paramount" and gave the Board authority to enforce preservation of tree heights to allowed building heights, 2) if there was a tree-blocking-view dispute or any other CC&Rs related dispute that the involved parties could not resolve, the Board would resolve it and send the offending party the bill & 3) all homes were to be single buildings without detached structures. Amending Number 3 was popular because people wanted garden shacks - they would be approved by the Architectural Control Committee. One of the drafters of the amendments had many trees in his front yard that he knew would grow up and block his neighbors's views, so he put in a clause that said "no one is entitled to a totally unobstructed view." The Board had recently concluded a contentious view resolution process where some trustees actually did the tree removal themselves to keep the cost down; so, they inserted a new section that defined dispute resolution responsibility to be the sole responsibility of the involved parties forcing them into costly professional mediation and arbitration.

The pre-voting PR for the amendments emphasized the garden shacks and gave faint description of the ramifications numbers 1 & 2. The amendment process was by individual ballot , not "an instrument signed by 90% of the members" as the CC&Rs dictated. After 3 months, the Board contended that the required affirmative ballots had been received, the president and the secretary certified the result and recorded the certification and the new CC&Rs. However, the ballots "disappeared" and were not to be found in the association records.

Years later, the trees began to grow up into people's views and selected members were beginning to find their views disappearing, their property values declining and their property tax collector taxing them for their potential view.

When the actual ballots were found 9 months ago and independently inventoried, it was conclusively determined that the 90% criterion was never met. This really means that the election/ballot process was void (the certification was in error at best or completely bogus at worst), the amendments are void and the original CC&Rs are the operative declaration. The current Board president is one of the authors of the tree/view amendment and re3fuses to initiate remedial action.

PetunkaM, thank you for your reply. We had started the amendment process about a year ago. It is an arduous process. When we discovered the voting impropriety, we determined that the amended CC&Rs were not valid, so amending an invalid declaration is a waste of time, money and effort. You should not try to build a fortress on a sandbar in quicksand. We are going to try to do your second suggestion - if a statute of limitations does not interfere.

City of YOUNGTOWN, AZ??? .. Over the years, a number of children living with their grandparents were evicted.(Larry)

How cruel. I have never ever heard of a city evicting children. Is it even constitutional? Imagine doing the opposite. Having a city where no one above 55 could live and they would evict the parents and grandparents. And, I can go on. Besides, it could be even against the Federal Housing Act.

Tim,

Makes me almost cry. Is this even possible in the good old USA? Can some old people get so bitter or resentful? I dislike controversy and as a rule I do not fight. Not worth it. But if this happened to me I would go all the way. I really would.
The NY Times Articles written in 1997 is not very specific. The1995 amendment to the Housing act says (pls take it with a grain of salt, because I did not read the whole act’)

‘Exemptions allowing discrimination against children under the Act are interpreted narrowly, so it should be expected that all communities of retired persons will not qualify for treatment under the Act and will not be able to legally discriminate against families with children. In such non-qualifying developments, market forces may discourage, but not preclude, young families from seeking residency even though legal exclusion is not possible.

Well, the 55+ comunities are another story. Personally, I do not like the concept at all. Thanks for the info.

SusanW, thank you for the suggestion,however, in our situation, the recent Board has been uncooperative the latest Board is in denial. The major obstacle to your reasonable proposal is that the current President totally dominates the Board and was one of the two principal authors of the offending provisions - he is emotionally involved to say the least. Nonetheless, we shall attempt to have the Board make the resolution that you suggest at tomorrow night's Board meeting. We certainly can't be any worse off.

Carl,

I believe that building a fence to accommodate someone’s special needs is one issue. But breaking up a family is something else altogether.

Ayway, is one article talking about the 55+ community regulations although it may be outdated.

http://www.regenesis.net/3/seniorstatutes.htm

LarryB13, the Youngtown, AZ case is very interesting,but I do not seem to be able to find many details. Do you have any links to the case pleadings or the AZ AG records? I found various news articles and the names of the original plaintiffs, some dates, but not much after that. There seems to be a lot on the loss of property values when Youngtown lost its adult-only status.