Common area used as farm

I hope someone can answer this. Our HOA owns a lot which has been designated to be a future parking lot. In the 27 years this community has been here the money was never available to start the parking lot. The last 16 years the Board gave a few residents permission to use the property for a beautiful garden. They grow produce and share with any residents who want some produce. Because they were given permission from a previous board they can't claim prescriptive easement. Our power hungry new president is going after doing away with this farm, which is a beloved fixture here, for months now. She and her friend which was appointed to this hand-picked board and are both realtors. They claim we could be sued if someone gets sick on the produce. This is a specious argument as they want to put in a horseshoe pit which has sand and dangerous spikes coming out of the ground. Yes I know it is not normally thought to be dangerous, but certainly just as dangerous or even more dangerous than produce!!!!! I know they will need a permit from the city to do anything they want to erect here such as a gazebo, another suggestion. Davis-Stirling Act says it is never in the best interest of the community to have realtors on the board they will spend money on cosmetics and amenities to attract home buyers and forego spending money on needed repairs, which is happening here. Any suggestions about what can be done to stop this? Nobody but this out of control board wants to see this happen. We are at their mercy and they have none.Thank you

Your problem is two board members. Gather enough signatures to hold an election for a new board.

If your new president and her friend claim that someone could sue if they get sick on the produce, you can counter argue:

1. You cannot find substantial case law to verify and would like to have a legal opinion.
2. You can see how other community gardens handle the issue of liability.
3. You can ask your insurer if this is true and if your community would be covered. This should be free and you can take the opportunity to learn more about your coverage. You might already be covered.
4. You can also ask for everyone to sign waivers.
You should ask your board to invite your insurance agent to an open forum so that any and all questions may be answered. You can request a copy of your insurance and the board is required to give you access. If the board doesn't have a copy, then they have no way of knowing what is covered either.

Next, since the new proposal is a horseshoe pit you might want to check:

1. what your CC&R say about capital improvements
2. What your CC&R say about material alterations to common areas.

Your documents may indicate that a membership vote is required for a capital improvement or material alteration.

"A capital improvement is any (i) substantial discretionary addition to the common areas, (ii) voluntary significant upgrade to common area materials, or (iii) discretionary material alterations to the appearance of the development."

You would then look to see if your governing documents have a spending cap on capital improvements.

It might be the case that the board is required to make a proposal in writing, send it out to all members and have a forum or even a membership vote after 30 days.

Any material alteration in appearance of the development should require a membership vote even if the cost does not exceed 5 percent.

Other concerns would be fencing the area off because those stakes are indeed a safety issue, maintenance (weeding and picking up cat feces) and grooming of the sand or whatever. Because it was a board decision to allow this community garden, the board would also be responsible for removing the plants and this should be part of the cost estimate included in the proposal. Similarly, you can ask if the board will be liable if someone gets injured.

The actual Davis-Stirling Act does not say that it is never in the best interest of a HOA to have realtors on the board of directors. You are probably mistaking that for the opinion of a legal firm.

You do not say how many board members there are and how many units there are. You are not at the mercy of your board because your board works for you. You must be clear on what your CC&R say, what California legal codes say and what is opinion.

You do not indicate how this board means to forgo needed repairs. The only thing that is clear is that the board is making a proposal to spend money but there is no indication of how many or what percentage of your members would actually use the horseshoe pit.

There is a case of injury (Kansas 1997) from an unfenced horseshoe pit that resulted in severe injury to a minor. http://www.kscourts.org/cases-and-opinions/opinions/ctapp/1997/19970328/75286.htm

Here's information about a community garden liability insurance program:

http://www.communitygardensonoma.org/?p=607

http://igrow.org/community-development/communities/community-garden-start-up-part-9-liability-insurance/

Who cares about the legal easement mumbo jumbo, seems if the parking lot wasn't needed for 27 years, why do it now? People are enjoying the garden, I'd recommend keeping it. No one will enjoy the parking lot and build community as much as the current garden. People with perceived "power" can make such bad decisions. Get all the garden people together, I'd start working on voting them out.

That's a very interesting article. Do younger people really like throwing horseshoes and under the current concern for water, would a putting green really be sensible?

We have a horseshoe throwing area at the local park and I rarely see young people there. It is fenced off for safety.

As I understand it, you were on the board but resigned.

This is like a broken record on this site. "I resigned because of an overbearing board member . . ." Not once have I read someone say that things improved as a result of resigning. In almost every case, the vacant seat is filled by someone who thinks just like the overbearing board member and everything gets a little worse.

For anyone that may have been following these threads and expecting that this is the same Association, it appears that the garden was removed. The status of the recall is unknown. See:

Homeowners flap uproots community garden

Note: there are several threads on the same subject. I've updated all of them for the benefit of future readers.

I am glad that you & others are working on the recall. Where are you in the process? Have you, for instance, gathered 5% of owners' signatures? If still working on that, get more than you need as it'll help your cause to show that your side is being supported. An excess of signatures also is good just in case some aren't valid.

Has the board said how your HOA will pay for the improvement (new things like a parking lot or horseshoe pit) they want????? I hope they do NOT try to pay for these additions out of your reserves account. Strictly forbidden in CA.

This board failed to ask the members what they wanted in regards to the garden. If they had, and they knew it, they would have been told to leave it alone! We have given them the recall petition and a recall date has been set. When I was on the board, at every meeting, I told the members, "I am here to serve you not the other way around, if you have any issues please call or e-mail me with your concerns" I was labeled "a bleeding heart liberal" because I didn't believe in humiliating our members who were in violation of our CC&Rs, I preferred to try and come to an amicable solution on all issues. Our management company has assured me that the recall will be handled in a timely manner. There don't appear to be any problems going forward. Thanks for your help.

However, people tend to have short memories of such stuff if you weren't involved in it.

I disagree about the media, but it certainly didn't shine a favorable light on our board. However when you are a right fighter and an immature bully you don't have the right stuff to admit when you are wrong. That describes our president, when she sees someone she presumes is unable to, or too polite to oppose her she strikes like a snake without a rattle (no warning). I fought her on the garden issue and she struck in a most vicious manner and in doing so she violated her Code of Conduct. She also broke the law as our agenda for that executive session was to talk about personnel problems, not to viciously attack a fellow board member (unpaid volunteer). We may have a black mark on the community, but we will rise from the ashes like the Phoenix. We will be better with a board which will work in the best interest of this community and will listen to what the members desire to have happen here. Appreciate the input. And I don't know who called in the media, and if people don't want to buy here then these two realtors on the board will not profit from their actions!