Allowing a boat dock that should not have been installed

Started by KathyE5 • 10 replies • 1519 views

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KathyE5 (Missouri)
Posts: 34

Posted:

Hi, everyone!

I am the president of our HOA and in a bit of a pickle.

A family bought one of our lakefront homes and, upon hearing that they were buying a new boat dock to replace the really bad one that was already there, I called them and told them that the boat dock not only had to be permitted by the utility company which owns our lake, but also had to conform to our HOA restrictions and amendments.

The homeowner told me that the company that had sold them the dock assured him that yes, it would conform, and yes, that they had worked with our HOA in the past and had no problems.

Well, that may have been but our restrictions specifically state "no docks over two wells (slips)" and this is a huge 3-well dock.

The property owner sent me an electronic blueprint of the plans prior to its being installed, but all I got was an upper view (showing the dimensions) and a profile view. Nothing that would have revealed the interior layout of the dock.

All this being said, this dock is beautiful. It is such an upgrade over the previous dock (which had been there since forever) that no one wants to nitpick about it have 3 wells.

PLUS, and this is a big plus, the home sits on almost 120 feet of lakefront, which is almost twice the lakefront available to any of our other owners. So, in actuality, the amount of lakefront could accept a 3 well dock without any problem.

But I don't want some property owner, in the future, coming to us and whining about how "so-and-so has a 3-well dock, and I want one, too." In all truth, the utility would probably NOT permit a 3-well dock in any other location on our section of lakefront, but that hasn't stopped property owners in the past from hauling in new docks that extended well over their property lines and actually collided with other property owners' docks, so problems could arise.

So, what should we do? Could we ask the property owner to request a variance, then immediately grant it?

If we did so, do we have to record said variance at the courthouse?

Thank you for any help you can provide, including -- if anyone knows -- how such a variance should be worded or whether we should hire an attorney.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The HOA is managed by the owners for the owners. If you want to adopt a variance and have proof of approval with conditions then go for it. Just document it.

Former HOA President

AnnH4 (Florida)
Posts: 53

Posted:

So what happens if/when the utility company comes out? Will they do anything about it? I do happen to think it is a slippery slope to allow one person but not the next person to install something that is against the restrictions. Perhaps see if you can get the affirmative vote to amend the restrictions based on the lake frontage with more slips for larger lots? Assuming that the utility company has no problem with changing their rules. Because I am thinking that the utility company has more jurisdiction right now?

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Before I would attempt to do anything, and spend endless time on this for nothing, I would attempt to notify the utility company and see what they want to do. If they don't allow it, all the time you spent in meetings and variance approvals, etc., will be for nothing.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SteveM9 on 06/19/2013 5:25 PM
Before I would attempt to do anything, and spend endless time on this for nothing, I would attempt to notify the utility company and see what they want to do. If they don't allow it, all the time you spent in meetings and variance approvals, etc., will be for nothing.

Good point.

KathyE5 (Missouri)
Posts: 34

Posted:

When we contacted the property owner we informed him that he first had to get the utility company's permission to moor the boat dock. This was done, and the dock is properly permitted with the utility company.

But their notions of what constitutes a properly permitted dock do not strictly coincide with our amendments. That is our dilemma.

Our HOA mandates no more than two wells in a dock, but as I said this dock is a significant upgrade over the last dock, which somehow had been approved a long time ago, and the lot is such that the dock is not oversized for the lot.

The board is unaninimous in wanting to find a way to keep this dock, but we are unsure how to do so without opening a can of worms.

I suppose we could just ignore it; every other lot already has a nice two-well dock, so it is unlikely whether any one will be buying a larger dock at this time.

My problem is what happens when someone else moves in here, sees the huge dock and says, "I want one, too," despite our restriction against same?

Of course, it is unlikely that the utility would approve a larger dock for those smaller lots, but then you just never know.

KevinK7 (Florida)
Posts: 1,343

Posted:

So if the lake is the property of the utility company and this dock would technically be on the utility company's property, and the utility company has permitted this dock, I am not sure how exactly you could enforce your land restrictions on the utility company's land.

KathyE5 (Missouri)
Posts: 34

Posted:

Well, I have been president for only 8 years and the subject of whether we are allowed to enforce our restrictions has yet to come up. That is a good question, however, as we have had property owners bring in unpermitted docks and it has dealt giant fits to both the utility's representatives and us, who worked in concert to get rid of those docks.

I will have to call them and see what their stance is on the matter and let everyone know.

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By KathyE5 on 06/19/2013 8:14 PM

I suppose we could just ignore it

That may be your best option. Most declarations allow owners to enforce the CC&R's on their own dime so if someone complains give him a map to the courthouse. Unless your declaration specifically allows your board to grant variances, then you cannot.

The board gets to choose which battles to fight and which to sit out. This sounds like it is not worth fighting although it would be a courtesy to the property owner to let him know that a future board may see things differently.

KathyE5 (Missouri)
Posts: 34

Posted:

The utility has told me that they will abide by the restrictions in place in a particular development so long as they are made aware of them. They were NOT made aware of our restrictions, even though they were engaged in a tussle for years over a too-large dock purchased -- but not properly permitted -- by one of our POA members.

The utility has requested that we send them a letter advising them of our restrictions and that they will then try to make sure that the restrictions are met when new plans are submitted to them.

I will have to check to see if we can issue a variance, but I do not recall anything in our CC&Rs that says we can so we may be out of luck. If that is the case, should we amend our restrictions to permit the large dock? Or, as stated earlier, simply ignore it?

I'm thinking ignoring it might be the way to go.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KathyE5 on 06/20/2013 1:52 PM
The utility has told me that they will abide by the restrictions in place in a particular development so long as they are made aware of them. They were NOT made aware of our restrictions, even though they were engaged in a tussle for years over a too-large dock purchased -- but not properly permitted -- by one of our POA members.

The utility has requested that we send them a letter advising them of our restrictions and that they will then try to make sure that the restrictions are met when new plans are submitted to them.

I will have to check to see if we can issue a variance, but I do not recall anything in our CC&Rs that says we can so we may be out of luck. If that is the case, should we amend our restrictions to permit the large dock? Or, as stated earlier, simply ignore it?

I'm thinking ignoring it might be the way to go.

Kathy

We call it benign neglect.........LOL

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