Gate vs. No Gate - Conditional Use Permit

Hello, We live in an ungated community and there is a group of homewowners wanting to install a gate. A vote was held where 33 voted yes, 28 voted no and 19 did not vote. Our documents state to change the CUP (Conditional Use Permit), stating NO gate, we need 67%. We do not have 67%, however, the gate folks got nominated to the board and they are now proceeding as if they have approval. We need advice on how to stop them. They have gone to the planning committee and believe they have approval. Can you please advise on how to stop them? Thank you very much!

Debbie

Your numbers say a total of 80 homeowners. 33 Yes, 28 No, 19 Abstain for a total of 61 of 80 voting.

The questions are:

1. Is it 67% must vote? You had 76% voting.

2. Is it 67% of those voting to approve? You had 55% of those voting, vote Yes.

3. It takes 67% of all to approve. This would require 54 of all 80 voting Yes.

I say it did not pass. You have 3 choices:

1. Get the BOD to agree it did not pass.

2. Recall some or all of the BOD to stop them from proceeding.

3. Hire a lawyer to legally stop the BOD from proceeding.

Hi Larry,
A CUP is a document that states "no gate". I'm not sure how it ties into the HOA documents. It is a separate document and states that to change the document, a vote of 67% is needed, which we don't have.

Debbie,

Since the board appears to be proceeding without the required authority, the smartest thing you can do at this point is to notify the board of their error. My study of HOA law indicates that if a person (or group of persons) is made aware that what they are doing is prohibited then they proceed at their own peril. If they are not given notice or no objection is made it may be too late if the work is completed.

The effective way to make them aware is to send them a letter by certified mail pointing out the requirements of the CUP and the fact that they do not have the required owner approval. Hiring an attorney to send such a letter would be advisable but not entirely necessary. Today would not be too soon to make your objection known. If the board continues in spite of this then it would be appropriate to hire an attorney and seek an injunction against the board.

It would be helpful if you could post the exact wording of what is required to amend the CUP.

Debbie

You have two choices in my opinion, either hire an HOA attorney @ $325-$400 an hour, or file a small claims action against the association for the maxinum allowed of $5000.00.

The other issue is hope it is to be paid for. The monies would have to have been earmarked already for the project. Can't use reserve funds for this. It would be a capital improvement project.

That seems like a substantial change to the properties. Does the state have and laws or court cases addressing such a thing?