Due Process

Anyone have actual (or knowledge of) Courtroom experience with the 'due process' requirements for CR&R violation citations? Specifically, even if an alleged violation was self-evident on the merits, but the BOD did not follow statutory procedures (i.e. no registered mailer; no offer of a hearing; etc), might the HOA still prevail under any circumstances?

It is a fairly new subdivision, and our home was the second one built. The alleged violation was installation (at CO time) of an above-ground propane tank, which the developer now (over one year later) says violates the 'lot appearance' clause of the CR&R. I'm contesting this since it is a functional utility only a few feet from a side wall, we've landscaped around it, and these are common in this area. (The CR&R clause is only general language, and doesn't mention propane tanks.) However, there are now five homes and I have the only above-ground tank.

You seem to think I may have more luck with the Va CIC office than to take my chances in court....

Well, we did submit building plans showing a gas fireplace (per the ARC guidelines) but minus the propane tank outside. I'm still not sure it's a violation or not, and I'm not a happy camper about it.

Nevertheless, I think your recommendation is prudent, and we'll give it a try. It seems a trivial thing to file a legal action over. But if for some reason it gets to that point, you still hedged on my original question: do you think -- unless I receive proper due process -- a Va court will dismiss....or not? (I'm not assuming your opinion to be legal advice.)

Thanks!

Tim, aah! We have now looped around to my original question: How important is 'due process' to a Va court, versus the 'merits' of the violation (assuming they agree the covenants were violated)? Re the due process:

I have already conceded receiving the violation notice, but it was not sent certified (so no signature).

The notice cited the appropriate CR&R clause, threatened a fine, but did not name any amount (so no 'monetary assessment' stipulated).

There was no offer or any mention at all of a hearing in the notice (so of course no hearing was held).

The notice was issued over a year after installation of the tank.

There was no 'warning letter' or any other treatment effected prior to the notice.

There was no BOD 'open meeting' (so no minutes) reflecting the discussion, vote, and decision to issue a homeowner violation.

In other words, the violation notice came late and out of the blue. (The developer is the type who makes up his own rules.)

Tim, I appreciate your candid opinion. But it distresses me that the Va legislature would go to such lengths in developing these POAA 'due process' statues, only to have judges ignore them (as you seem to think they may well do). Yes, the HOA (developer) can always go back to the well and 'do it over' correctly -- I understand that point you made. But I find it hard to believe the judge would simply acknowlege that the HOA could always 'do it over right' and save everyone time and effort by ignoring these due process statues and ruling against us. Am I crazy?

The OP violated due process by not getting prior/written approval for a tank.

The HOA (allegedly) violated due process in serving a violation notice of the unapproved tank.

Sum = Zero

The HOA will prevail as the law (CC&Rs) is on their side.

John, I like the way you think! No, there is no public utility for natural gas so I will put your 'defacto' argument in the arsenal.

Thank you all for your most-welcome thoughts on this thorny issue.

Ray,

The term "due process" is a requirement that applies only to the government. An HOA is not a government agency and is not subject to the due process clause.

Ray,

Even if you accept John's premise that the propane tank should have been expected and approved, there was no meeting of the minds. John said "maybe" the tank was an accepted fact.

It's also possible that the Association thought:

a) you would request placement of the tank after you had permission for the fireplace and consulted with a propane supplier.

OR

b) you would use the standard portable 20 lb tank vs. the 100 lb tank (or other size) that was installed.

If you review the posts in this thread, I also indicated that an argument could be made that the Association should have known that a tank was part of the package. Glen provided an argument the Association could use about the tank. In this post, I provided additional possibilities of what the Association could argue.

Lets again review the issue:

1) You sought and received approval for a gas fireplace.
2) Per your own admission, the request did not include the propane tank.
3) The Association noticed the tank and believes it's a violation.
4) The Association sent you 1 letter informing you of the violation and requesting you remove the tank or other enforcement actions (fines, legal action, etc.) could be used.

That's it. Per your posting, that is as far as the issue has gotten.

Did you respond to the letter yet?

If not, the best response would be to ask for a hearing before the board. At the meeting, explain that you were under the impression the tank was authorized when the fireplace was approved. Explain that in reviewing the paperwork you see now that the tank was not mentioned in the request and you would like to work out a compromise. Then ask what the actual issue with the tank is (location, size, type of screening, color, etc.) so you can discuss options on how to address the issue.

If you did respond, how did you respond?

As Glen and others pointed out, if you responded defensively it may be harder to get to a compromise as the issue will be forgotten and, depending on individual personalities, the issue will become who is right and who is wrong. From what I've seen, when that becomes the issue - no one really wins.

Right now, again based on your postings, I do not believe the Association violated any procedures or VA law. Since there is no final disposition to the issue from the Board, I doubt that the CIC would even get involved. If your thinking of taking the case to court prior to a final disposition or being fined, I think you would be wasting your money and likely lose.

Oh, a note on VA Common Interest Community (CIC) Board, as I understand it, if the CIC board did get involved they would not address your issue with the propane tank as they don't have authority to address those issues. They would only investigate if the Association violated CIC board regulations (requiring the Association to have a published enforcement policy with specific steps and that it was followed). If there was a violation of the CIC regulations, the CIC board could fine the Association. That's it.

If your looking for assistance on how to address the issue, I hope this is helpful.

Tim

Well the issue is that the CIC is that they are not part of the judicial branch and all the issues typically associated with Associations are civil issues that must be resolved between the parties involved or through the judicial process.

Afraid not. We are the last house on the street (cul-de-sac), and the tank is on the cul-de-sac side of the house only a few feet from the structure. In other words, it is not visible from the street or any other lot. Also, we have already landscaped around it.

This is not about the propane tank. (The declarant waited a year before issuing the violation notice.) There are other issues within the subdivision/HOA. This is why I had asked originally about a 'legality' issue (ie. hearing notice, etc) and not about the 'merits' of the dispute over the tank.

"A resolution is enforceable once it's published to the membership."

Tim, that statement interests me greatly. I realize you are not an attorney, but can you cite to any (VA) authority for this?

Laura

The only municipal codes I am aware of about LP gas grill type tanks (which the OP's tank is not) is you cannot have them on decks, patios, balconys, whatevers above the first floor. I know some have regulations about storing them inside a structure.

Those issues aside, I have never seen a general/overall ban on them.