When BOD are in Violation

My community was transitioned in Nov. 2006. Since that transition mtg, homeowners volunteered for committees and BOD were elected. My question, being a homeowner, I believe we have been selectively discriminated against because our home is one of the first homes you see when you drive in. Our fence is in compliance with the CC&Rs; however, out of county code compliance. The new Board is forcing us to get into county compliance. Bear in mind, that 2 out of the 3 Board members are out of fence compliance1) with county code as well; and (2) with the CC&Rs. Also, we have rec'd a violation notice back in Nov., and requested a hearing/appeal shortly thereafter and the Board has ignored our request for an hearing/appeal to this violation (I hand-delivered or request for an appeal in Nov. as well as reminding them twice of our request via email). Now it is Feb. and the BOD arbitrarily (without consulting the ACC committee) agreed that we have to move our fence and to quote per their letter "the fence and gate should be of the same design and style specifications to match the fences in the community." Other fences in the community are of different styles, stains, heights, than what is prescribed in the CC&Rs. How do I handle something like this without going to an attorney? How can the Board vote on this when 2 of the members are also out of compliance? Also, I have volunteered to be on one of the committees and the BOD and/or our management company has not advised any homeowners (as I have talked with other volunteers) of their roles or responsibilities or even that we are on committees. Also, I checked with our management company and the 2 board members have not received violations or submitted an ACC application to build their fence. Help!

Despite the HOA being able to make it's own rules/regulations for the owners, the rules must also NOT violate county/state/federal laws. It sounds like your fence is in violation of COUNTY regulations. That pretty much means the HOA board is helpless except to give you notice to fix it. The county is on them just like they are on you. I also wouldn't assume that the other members in county violation isn't doing something. You can't always see an action. It took me almost 2 months to get a fence put up due to the fencing companies being backed up a few months.
If a homeowner is in violation of a county/city/state law, the HOA board responsibility is to make sure the correction is conveyed to the owner and it fixed asap. If you do NOT fix the violation, the board can vote to do the repair themselves and send you the bill. If you don't pay that bill, they can lien you for it.
EXAMPLE: Right now, in the HOA the fire marshall has "stepped-in". One of the homes went up in flames. The cause was determined to be a uncleaned wood burning stove chimney. The fire marshall has made the the HOA put up notice to homeowner's that they shouldn't use their fireplaces until the fireplaces have been cleaned. The HOA can't verify or force the homeowner's to clean their fireplaces. They can make sure that the Fire Marshall's message is handed out. Do you think the HOA had a responsibility to make sure every homeowner's fireplace is up to code? It could be the same situation with your fencing. The county violation must be conveyed but the work has to be done at owner expense.

ToddD

You have several points to consider in the actions you take. First, unless the CC&Rs specifically give the association to enforce the county codes, the association cannot enforce the codes. Of course, any resident and perhaps the association can file a complaint with the county seeking enforcement of county codes. If it is important, perhaps one of the residents should file a request with the county for code enforcement and list all the properties that may not be in compliance. Read the CC&Rs first. If the board doesn't have the authority, write to the board so stating and rescind your request for a hearing (which would imply that you believe the board has the authority).

Second, you can certainly make a request of the board to uniformly enforce the provisions in the CC&Rs with regard to fences. That is the obligation of the board. You should list all the properties that appear to not be in compliance.

Third, if the fences meet a reasonable visual standard, maybe the board should consider an amendment to the CC&Rs for a more appropriate restriction on fences.

There will be growing pains in the beginning. Accommodation and working together are important.

ToddD:
You may be jumping ahead on this with Board/County when it's not necessary. Give us more info to advise you.

- When was your fence installed? (before the HOA was transitioned to residents Nov. 2006?)
- Who installed the fence?
- Did you have to submit to the ACC Committee a request to install the fence? If so, was it approved?
- Do your CC&Rs state that a fence can be erected? and what the material is to be?

If you supply answers, maybe you can get some additional advice without going to the county or causing issues w/Board.
PaulM

Hi Todd:

Several things...
1) If your fence was constructed by the builder, if has at least an implicit ACC approval. Talk to your builder on this (usually through the real estate agent who sold for the builder).
2) If the BOD has not responded to your request for a hearing, send a formal request via certified mail (with a 1st class copy) and include the dates on which you either hand delivered or emailed a request (with copies enclosed).
3) If you are within a city, it may have a different code for fences than the county; check that out.
4) Include in your request for a hearing, a list of homes with fences that are also "out of code," and request that the BOD either take action against all or none.

It is not unusual that the organization of committees may take some time. When I was doing portfolio management of HOA's I would email the Board members with the committee signups the day after the turnover meeting, as well as include it in their first management report. I always encouraged them to contact volunteers as soon as possible, but understood that it was ultimately up to them to do so.

Best of luck,

J. Patrick Moore, CMCA