Declant's BOD violating covenance

Hello,

This post relates to the 'Neighbor's Industrial Truck' posting. I wanted to start a new topic, because I have finally got a hold of the crucial CC&R and another piece of information, which indicate to this ignorant layman that the Declarant's unelected Board of Director's have made a decision that goes against the Community Covenances. I have included a copy of my original grievance below.

Section 17(d)

"Except for parking within garages, and except as herein elsewhere provided, no junk vehicle, commercial vehicle (including vans used for commercial use and vehicles displaying commercial signage), truck (as defined by the Virginia Department of Motor Vehicles and/or by common usage and practice except for light pick-up trucks of three-quarter (3/4) ton capacity or less used for non-commercial purposes)...shall be kept upon the property or upon the public or private streets within or adjacent to the property.  The Association may, in the descretion of the Board of Directors of the Association or the Covenent Committee, provide and maintain a suitable area designated for the parking of such vehicles."

As defined by the Virginia DMV: "truck" means every motor vehicle designed to transport property on it's own structure independent of any other vehicle and having a registered gross weight in excess of 7,500 pounds.

I don't know the exact weight of my neighbor's work truck, a virtually identical vehicle I found online was listed as a Class 5 vehicle.
A Class 5 vehicle has a weight of between 16,000-19,000 pounds. In any case his truck far exceeds 7,500 pounds.

Question: if I am right and this decision is wrong, what can I do?

My Original Post:

Hello everyone,

I am new to the group, but I have a serious problem with a neighbor's commercial vehicle that the HOA board of directors has allowed to remain in our neighborhood under conditions.

In July I moved into a brand new townhouse in Winchester, Virginia.  These townhomes are considered upscale for the area.  While moving in my brother noticed a large, green truck with a crane, generator, and tool bins all over.  We both thought it was part of the still on going construction in the development, but sometime later I learned that it is used by my next door neighbor for his work as a heavy vehicle repair technician for a local excavating company.

This bothers me a great deal, not so much because the truck is an aesthetic eyesore which it is, but because this fellow works in two professions both rated for asbestos exposure.  This not to mention potential exposure to all sorts of other nasty substances found at excavation sites, especially those that saw demolition beforehand.  Anyways, he brings his dirty truck back in the evening, and parks so the muddy extended fantail of the truck overhangs the sidewalk, and he parks at the high end of the street.  So everytime it rains the crap runs off his truck right down the sidewalk and on to my walk/lawn.  I and my dog then track that stuff right into the house.  I am even afraid to open the front windows because of the close proximity of his dusty truck.

Although, I thought to talk with the neighbor directly as I prefer, someone who knew the fellow urged me not to do so.  So I and at least one other homeowner (there are probably only 8-10 in the entire community at present including the fellow with the truck) complained to the HOA representative and the builder.  The HOA representitive initially seemed very optimistic that the rules were on our side.  After a few weeks though he called me back and said that the board of directors had decided to allow the truck to stay as long as he covered the sign and kept the vehicle clean.  He has fulfilled the first requirement, but not paid much heed to the second.

The decision to allow his vehicle to stay provisionally was made because apparently the rules were written to the state standard for commercial vehicles, which is defined as anything 13 tons or over  and capacity to carry over 10 people.  This is absolutely ridiculous!  Anyone looking at this vehicle can see this is a commercial/industrial vehicle, and it is parked at the epicenter of our new community.  Kids play around the vehicle even though it has 'danger' stickers placed all around it. The fellow was asked if he would consider placing his truck in the overflow/satellite parking area a little further away from people's homes, and he apparently refused.  Now the HOA manager says his truck is 'grandfathered' in so even when we the residents takeover leadership of the HOA we will not be able to do anything about it!

This is intolerable, and I am not going to stand for it, but I don't know where to begin?  The HOA manager is a joke and quite ineffectual.  Should I hire a lawyer?  Talk to the guy and try and make him understand that he is ruining my quality of life?  Contact his company myself?  Do a Ghandi style fast?  What?

Thank you in advance for any helpful advice.

Charles,

Looks like your CC&R's are very specific. A "3/4" ton pickup can be equipped from
6,400 GVW to 8,200GVW.

http://www.ford.com/trucks/f150/2012/specifications/payload/

If a truck has dual rear wheels it will be rated FAR above 7,500 GVW

A few years back I did a LOT of research on this issue. Instead of getting into the GVW or physical size issues we said any truck used for business purposes with dual rear wheels or more than two axles is prohibited to park outside overnight unless on a HOA permitted active job sight.

Your best bet may be going through the Town if he is in violation of the residential zoning codes. We have found the Town carries a much bigger stick than our HOA and that once they become involved the compliance rate goes way up. I think the local construction and service industries really don't want to "get involved" with the Town, if you get my drift. Let us know how it comes out, thanks for the feedback.

Paul T

A Board certainly may overturn a decision it previously made. But you need to persuade it to do so. Maybe a politely worded letter to the Board pointing out VA's definition of a truck? If you know of others who'd like to see the truck gone, you could submit your request in the form of a little petition.

Thanks everyone,

Paul who would I contact to find out about zoning regulations?

Thanks.

I agree with Paul. Although at this point, your board has simply NOT taken any action against the presence of the truck. (unless the expressly granted approval)

Now is the time to comb those documents with a fine toothed comb. Look for something that says that any co-owner also has the right to enforce the documents should the board fail in their responsibility. Check with your local municipality as suggested as well.

In the meantime, I would file a formal complaint with your board of directors, citing chapter and verse the specific restriction that is being violated and ask them to remedy the situation within 14 days. From there, you probably have the authority to seek enforcement of the restrictions without the BOD.

What you have here is absolute crap.

The restrictions are clear as a bell and your neighbor would normally be in violation. The crap part is the line that states, "The Association may, in the descretion of the Board of Directors of the Association or the Covenent Committee, provide and maintain a suitable area designated for the parking of such vehicles." In one place it says you cannot park these vehicles under any circumstances and the other place it says the Association's BOD may provide a place for them to park. This is the very definition of ambiguity.

The Association, who under normal circumstances is the party charged with enforcing the deed restrictions, is here permitted to do pretty much what it wants regardless of the actual recorded CC&R's. It's like have a statute that says it's against the law to rob a bank unless the police feel otherwise. The recorded CC&R's are supposed to be a notice to the owners of what they may and may not do but, in this case, the restrictions are subject to whatever the BOD feels like doing.

At this point, Charles, I think you are in a rough situation. The best you can do now is argue that the Association has not provided a suitable area designated for the truck. I interpret "designated" to mean that there must be signs posted or some other means of positively identifying the truck parking area.

My recommendation is that regarding this matter that you cease all communication with the "community representative." All your communications should be in writing and should be directed to the Association's Board of Directors, even though they are the developer's toadies. If state law allows it, I would recommend requesting the minutes for the meeting where the board designated the truck parking area and a copy of all related documents (maps, diagrams, applications, etc.) designating the truck parking area.

One other thought: If you are up to it, sue the owner of the truck demanding that he remove it. The owner of the truck is a WV corporation and not a resident of your condos. The truck owner has no right to park on your property and the owner has no standing to request an accomodation from the Association as he is not a member. If you are in a condo, you have an undivided interest in the parking area and the truck owner has none at all. Most CC&R's give owners the right to privately enforce the restrictions.

Charles,

I agree with Larry. The CC&Rs allow the Board to waive that covenant and designate the driveway (if they so desire) as a parking area. The good news is that when the membership has control they can change that.

I think you will have a better chance of having the vehicle removed if you file a tax evader claim on the individual. As Larry pointed out, the owner is in WV and will likely not want to pay VA Personal Property Taxes on a commercial vehicle.
If it were me, I'd take pictures for a week straight to document the vehicle being parked there overnight and file them with the claim. Then let the State Department of Taxation resolve the issue. Either the truck will be moved or VA tags will go on it.

Good morning,

Thanks everyone for the ideas and encouragement. This issue is really getting to me, I had a bad night sleep. This situation is starting to turn into an episode of the Twilight Zone.

The sales representative for the builder (who sold me my home) is supposed to call me today, and I am going to ask her for contact information for the BOD. I think it is a good idea to get a copy of the actual determination by the BOD as you suggest, because if what the idiot community representative originally told me was correct their ruling had nothing to do with designating a space for his vehicle, and everything to do with this wacky weight calculation which is incorrect. The community representative's supervisor, who is supposed to be working this problem for me said he would call me yesterday and of course he did not. My prediction is he will call me today and say that he sympathizes with me, but.........

If I get a contact for the BOD should I call them, email them or send a letter? I would naturally prefer to call them so I can better emphasize the problem. However, email is acceptable, a letter is too slow and they might not choose to open it or respond to it in a timely fashion.

Thanks again

In no way would I interpret "designated parking area" to be his driveway. That would be completely contrary to the restrictions that you posted.

They read (to me):
You can't park that type of vehicle in the association
BUT
Should the BOD decide to designate a special location/lot for ALL such vehicles, they may do so.

"The Association may, in the descretion of the Board of Directors of the Association or the Covenent Committee, provide and maintain a suitable area designated for the parking of such vehicles"

How many areas does it designate? ONE
How many vehicles? MULTIPLE

Unless his driveway is the designated location for ALL such vehicles, then the BOD has no right to permit the vehicle in that location.

Take a picture next time. It would bolster your argument.

From your posting, it appears that you are willing to take this issue into the court system if need be. Therefore, the earlier you start a paper trail the better. I would use e-mail or certified letters.

Hey everyone,

Believe it or not the Board of Directors are going to vote again, so there is hope perhaps. There is general agreement now that the CC&R was not followed, and that my neighbor's vehicle is after all a truck as defined by the state of Virginia. And no they had not designated the space in front of my neighbor's house as a special area for a noncompliance vehicle.

If the Board of Director's rule the way I hope they will, then they will designate a portion of the overflow/satellite parking area as a refuge for my neighbor's truck, but they have to inform the membership (meaning my neighbor's and me). My neighbor may put up a fuss, but I trust he will not prevail.

I don't think I should say anything more until this thing is finalized.

Thanks everyone for your help it has proved invaluable.

Hi everybody,

He moved the truck!!! The board ruled, the community representative called, and without the slightest fanfare he moved the truck to satellite parking! I can scarcely believe it has happened!

Apparently, there still has to be a meeting of the Board of Directors with a member (resident) present to finalize exactly which parking slots in the satellite parking lot will be for the purpose of noncompliance vehicles. But, there is no argument even from my neighbor that his truck is most definitely a truck and cannot park in the residential spaces. I will say more about exactly how this happened after this business is finalized.

What I would like to say now though is that this is the most immensely helpful discussion group I have ever encountered anywhere, it is absolutely true that this outcome could not have happened without all of you fine folks lending a hand. I mean I did not have a clue when I stumbled in here. I had no idea of what a CC&R was, but darn if it was not the instrument that ended this nightmare just as many of you said. So I would like to thank PaulT6, TimB4, DaveD3, LarryB13, KevinK7, AnnJ1, CarolR13, John46, DJ1, JeanneK3, and GlenL (I hope I did not leave anyone out.) I would like to buy you all a beer or other beverage of your choice, although TimB4 is the only one in the vicinity I think.

This evening when I went out to walk my dog I noticed my neighbor's minivan had the rear hatch (fully automatic) open, and no one from the family was around. I decided to go ring his doorbell and tell him about the open tailgate. He appeared with his baby in his arms and while he seemed to be mildly thankful, he was not overflowing in his appreciation (I suspect he must know I was one of the residents that complained.) In anycase I was happy to help them out as I feel guilty that he was not as bad a guy as I imagined (oh, I found out the BOD had not requested if he would be willing to move to satellite parking previously that was a misunderstanding.)

For now I will just say thanks again. Have a pleasant evening. I know I will for a change!

Charles,

I am with Tim, we have had cases very similar to yours where after a while, "Shazam", the truck re-appears just like the beginning. Otherwise, it is a good start.

Paul T