CC&R Interpretation

Hi,

I thought I’d take a pulse on a situation that I’m having with my BOD. I apologize in advance that this is long.

Last April I applied for an exterior improvement, an in-ground pool project. Of course our CC&R says all exterior improvements have to be approved by the CC before work starts and ‘that no above ground or in ground pool is allow unless approved by CC’. Note that there is no use restriction on the type of safety barriers.

At the time of application the BOD was acting as they CC. They held our application for 3 weeks until they issued “guidelines”. They then approved my project with a contingency that my safety barrier has to be a white fence and referred me to the recently issued ‘guideline’. Their rationale for the contingency is the following statement in the CC&R:

Except as hereinafter provided, no fencing shall be permitted except for white PVC post and rail fencing – open pasture type – with 3 or 4 rails. All fences, walls or enclosures, of whatsoever kind, and the location thereof upon a lot must be approved by the Covenant Committee. Any fence or wall built on the Property shall be maintained in good condition and repair in a manner not detracting from the value or appearance of the surrounding property. No chain link fences will be permitted on any Lot; provided, however, that Declarant, its agents or employees, or a Builder may use a chain link fence for temporary storage of building materials and supplies during the construction of improvements on the Property; and provided, further, if a swimming pool is permitted by the Covenant Committee, any fencing required by County of State law must still be approved as to type and location by the Covenant Committee.

According to the guideline I of course appealed the BODs ruling but as you would expect they voted to uphold their original position.

At the same time the BOD informed me the best way to get the project approved was to request a change to guideline document. So I did. The BOD said 2 things. 1) If they voted to not change the guideline I have could have the matter placed on the ballet at the June annual meeting. 2) That the vote would require the majority of the community to pass. I found out later that voting requirements for matters other than changing CC&R, Articles of Inc. and By-laws (as defined in the By-law) requires a “fifteen percent (15%)” quorum with the majority of the quorum, present in person or by proxy, to pass the issue.

The BOD started a vote on whether or not to change the guideline which was delayed for 2 weeks while one member was out of town. This member was needed to break the tie vote of the BOD (5 BOD members). So during this time I petitioned the community for support for the project and authorization for the BOD to change the guideline. After receiving the simple majority in favor of the change, I stopped actively pursuing petitions. I ended with 59% that I submitting as supporting documentation (per the guideline) to change the guideline and ordered my black aluminum picket safety barrier, that meets county building code. When the 5th BOD member returned he voted to not change the guideline!

The BOD put the matter out for vote at the June annual meeting. A quorum of the membership was present in person or by proxy and the majority of the quorum voted to pass the guideline change.

The BOD misunderstanding the voting requirements defined in the by-law erroneously reported the voting results then sent me a violation letter that stated only now that I have a deviation to the CC&R as well as the guideline.

By the time I met with the new BOD (which 4 out of 5 signed the petition) to ask for a review of the processes that took place, they had already met with the lawyer who had already threatened to sue. In November they finally got around to reviewing the process but they changed facts and documented history to say that BOD didn’t approve anything because of CC&R despite that my attorney defined a compliant process.

We have asked no less than 3 times for ADR and stipulated to binding arbitration, if CC&R does say only white PVC post and rail we’ll change! The problem is that there are also several picket styles both PVC and aluminum installed in the community. Finally at the January meeting they announced that the majority of BOD has ‘voted to proceed with a law suite’. When I asked about the vote, the Pres. said that he “doesn’t believe it applies to the guideline”. I admitted that we have different interpretation of the CC&R and have requested the BOD work with us by engaging a professional, independent third party. He said they won’t because a ‘mediator doesn’t have to follow the law’.

What a mess!

Maryland

In December 2006 the governor's task force released their final recommendations for new HOA law. ADR starting with a county ombudsman was one among many recommendations that was proposed during the recent sessions. I've check the general assembly's web site and that proposal did not make it through the first review.

What did get approved was a measure for receivership of dysfunctional Boards. Also, the house passed a bill to authorize the attorney generals office to investigate if there has been a violation of consumer projection. This bill is in review in the senate now. Neither of these bills would be effective until Oct. 07.

Hi JM2:

Thanks for your thoughts.

My pool project was installed with comprehensive landscaping which does include some Arborvitae :-) and the fence “disappear” from view. It also has spacious decking made of pavers and a rock water fall. Our lot sits on two open space lots and the project is harmonious with the surrounding structures (also a requirement of our CC&R). While the board hasn't figured it out yet I do need to add a few more plants to shield a portion of the project from the street which we don’t need approval for. A lot of people here are using Leyland Cypress’ to “enclose” structures – they’re inexpensive and fast growers.

Historically, I have made the observation that pool fences have gone from white PVC post and rail (which requires a wire mesh to be approved by the county) to white PVC picket style to now white aluminum picket style. Also, all of gazeboes and deck enclosures are white. We have a bunch of white plastic throughout our 78 one acre home community and frankly not a single other homeowner has planted so much as a flower or shrub around the outside of their project. The HOA attorney said that the variance for the change in material (PVC to aluminum) was in case it was required by the county. What a crock! The county is primarily concerned with barrier opening size and height, of course it has to be durable.

When I petitioned last year I spoke with 6 of the 9 pool owners and 1 soon-to-be pool owner, about their fences. They all asked for something other than what they have installed. It is the board has forced the color white and often the homeowner had to incur addition expense to do so. It has caused a lot of hard feelings and resentment towards the board.

I have a lot of $ invested in this project and haven’t finished yet. So I’m sure you can appreciate that I’m not inclined to install a costly, big white plastic fence that will detract value from my otherwise Zen project. It’s bad enough that the guy behind me has one. It doesn’t match his deck and clashes with his house. However, the wooden privacy fence that he requested would have looked much better. Silly me I was thinking when that went in, if that’s what my neighbor wants he’s entitled to it . . .

Considering that several people came before me, the community authorized a change to guideline, a vote took and duly passed and attorneys have defined a compliant process, I do think that board is being unreasonable.

Thanks again.
Tracy

When I registered and reviewed several strings I was certain that you’d tell me straight away, what you think about my current situation. So let me start over. Hello. My name is Tracy and I’m new to this forum or any forum for that matter.

Maybe I wasn’t clear when I said that I thought I’d take a “pulse”. The reason I logged on is because I want your opinion (please see my original post):

Does our CC&R place a use restriction on pool safety barriers and if so what color does it have to be?
If I don’t have a ‘white PVC post and rail fence [safety barrier] what do I have to have?
What did I do wrong?
Am I the moron that my BOD says I am?
Who is being unreasonable me or the BOD?

Thanks.
T

RogerB:

I applied for the project prior to installation. It was approved with a contingency that pool fences have to be "white" per the guideline. Petitioning and vote took place PRIOR installation of the black fence. The board has yet to remove the contingency from the project or change the guideline.

Tracy

Hi Roger,

The BOD acted as the CC at this time because they dismissed the CC. They are also the body that issued the guideline. The CCR appeal process says CC rulings are reviewed by the BOD.

The BOD - acting as CC, specifically stated to me (in writing) "the best way to get my project approved was to change the guideline for the entire association". They erroreously told me a vote of 51% of association was required but, voting as defined in our by-law, is a quorum of owners with 51% of the quorum deciding the matter. This is new voting requirement is not only not stated in the guideline but its not the only deviation from our governing documents.

However, I petitioned the community and 59% approved the guideline change (I stopped pursuing with 20+ homes to go). The BOD voted to NOT change the guideline and sent the matter to an 'offical' vote. Again of the people who bothered to vote, a quorum of owners voted on the matter. For us a quorum is 12. 16 voted. 12 for the change, 4 against it.

My concerns are:
- Did the BOD have authority to place a contigency on project? According to guideline, yes. But what about per the CCR? The CCR says projects have to be harmoneous to surrounding structures (I get complements on all the time), no pools unless approved (mine was - prior to installation) and if a pool fence is required by county it has to be approved as to type and location (exact wording above).
- Ok so the BOD didn't have to voluntarity vote to change the guideline after I gave them the votes they asked for [petitions] . . . but the matter went to an offical vote and it passed. Further, the petitioning and voting took place PRIOR to installing the fence. The community approved my project regardless of whether I have a piece paper that says the BOD/CC did - its not even signed by an individual. Is it legal for a BOD to not comply with a vote?
- First the newly elected BOD said that the guideline = CCR, now they say that the vote didn't simply didn't apply to guideline. Do they have the authority to do this?
The by-law specifically states that any matter that goes before the community accept for changing the [actual] CCR, Articles of Inc. and By-law are settled with a majority of a quorum. The community voted on it twice.
- I concede that I interpret the CCR different then BOD and the community agress with me. I've asked for an independent 3rd party review but they refuse to come to the table. Is that in any community's best interest?

The BODs potition is that:
Previous pool owners 'might file suit' against HOA if our project is allowed to stay because those owners asked for something other than what they have installed.

I admit that I personally have mixed emotions about the assertion. On one hand the previous pool owners didn't force the BOD into compliance and installed what they have. On the other hand I've experienced what they went through. I think that if the owners were to make a claim for repair/replacement of their safety barriers, the BOD should engage in negotiations to come to an appropriate amount of relief, if change is desired. I think that instead of suing us for 10s of thousands of dollars this would be better use of funds, if necessary and go much further toward restoring community relations. Your thoughts?

Thanks again.
Tracy

Thanks all for your input. It may not seem like it but I do appreciate it.

I am curious about something. I am seriously considering running for the BOD in June. While our doc's are not clear about what has to go out for vote and I agree that the BOD/CC has authority to implement rules, I simply don't believe that they have right to ignore a vote of the community.

1. Considering what has happened I'm concerned that the BOD would try to stop me. Would they have grounds? I see nothing our governing documents since my dues are current - I'm a member in good standing, except for a minor technicality.

2. As a point of reference I'd appreciate any input as to the previous BODs actions, specifically with regards to the community vote that took place.

Thanks again,
Tracy