Semi-Annual Meeting Question re: Proxy Votes

Tomorrow night we are having our half-way point meeting where we will spend the majority of the time discussing possible changes to the Rules & Regs (we are a new subdivision - not quite 2 years old and not at 100% capacity and at the first of the year we took over to from the PM to self manage).

The rules were atrocious and left a lot to the imagination & grey areas. We hope to tighten that up a bit. Our bylaws state:
- A quorum is defined to be those qualified voters present.
- The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies.
Amendments:
- By Members. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the members by affirmative vote of not less than a majority of the members present or represented at any annual or special meeting of the members at which a quorum is in attendance.
- By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the members shall be amended or repealed by the Board of Directors if the by-law so adopted so provides.
-These restrictions, except those which are the lot owners’ responsibility in perpetuity, may be amended at any time by a majority vote from the Home Owners Association with only one vote per lot or unilaterally by the Declarant until one year after 100% of the lots have been built upon and occupancy permits granted.

Based on this information, I have a few questions. We have no intention of voting tomorrow on any proposed modifications to the rules because we anticipate all of 15 people showing up. We would like to gather all proposals and send out a proxy ballot for which one member per lot could submit a vote (it would be regulated to prevent fraudulant entries).

1. Our rules don't say we can't vote by proxy. Any recommendations/suggestions on creating the ballot?
2. Is it advisable to note what the Board recommends on each issue or is that considered swaying the vote?
3. The last item says a majority vote of members can change the rules. Our quorum definition is the majority of members present. If we only get 10 ballots back and 6 say yes to pink shutters - are we bound? We'd like to preface the vote at the meeting by declaring that anything less than 50% response from the total members will be considered a dead vote.

Thanks a ton for those who will respond.

There are 3 main documents titled: Association By-Laws of the Association, Rules & Regulations of the Association and Subdivision Restrictions. We did not create or name these documents. The first outlines the roles of the Officers & BoD as well as voting procedures. The second are the actual homeowner restrictions and the third is the general restriction the subdivision has with the City.

I don't know what you mean by "run with the land".

We don't intend to vote at the meeting, so are you suggesting we identify an acceptable percentage of what we'd hope to get back via return mail from the proxy votes? We also don't want to change the rules to identify an actual percentage until after we are 100% occupied so that we know how many homes will actually be part of our subdivision when all is said and done.

DeannaB: there seems to be some confusion re your questions, and I'm not sure we can actually answer you correctly. You state, '...We have no intention of voting tomorrow on any proposed modifications to the rules because we anticipate all of 15 people showing up. We would like to gather all proposals and send out a proxy ballot for which one member per lot could submit a vote (it would be regulated to prevent fraudulant entries)...'

Check out other posts regarding proxies and voting. I believe the term 'proxy ballot' is incorrect. But you are correct not to change any documents until you are 100% occupied.

DeannaB - Who is "we" in your sentence "We have no intention of voting tomorrow on any proposed modifications". Is "we" the Board, is "we" a quorum of owners that feel the need to amend the cc&r's (covenants conditions and restrictions)? If "we" is a quorum of owners, do your By-Laws outline the procedure a quorum of owners must follow to petition the Board President or Secretary to call a Special Meeting of Owners to amend something? Your line item 3 just says a majority vote of members can change the rules. If your By-Laws don't outline a procedure for this, IMHO that is more concerning than violations to cc&r's. Reason is, because it would suggest that a minority of owners could amend something for the majority at will. See where I am coming from in my post to your topic? I take serious issue with a minority of owners that get things into policy without following a procedure and vetting the topic amongst the membership. The most democratic method is for a survey to the membership requesting their suggestion on how to go about correcting a problem. Certainly you should wait until their is 100% of the units closed and let the grass grow a bit afterwards. The process you entertain will have a long lasting impact and is very time consuming. Unless you want to cut corners and alienate those not residing and open yourself to a lawsuit.

You guys are absolutely right. It is an absentee vote, not a proxy.

The meeting tonight was pure torture. There's always that ONE guy huh?

The biggest contention that came out of it was this item:

Subdivision Restrictions state: These restrictions, except those which are the lot owners’ responsibility in perpetuity, may be amended at any time by a majority vote from the Home Owners Association with only one vote per lot or unilaterally by the Declarant until one year after 100% of the lots have been built upon and occupancy permits granted.

Now, my question is...according to the first statement, does that mean that 51% of people voting have to vote YES to change something? Or does it mean that the majority vote of the 51% who respond wins?

And..what happens the second year we are at 100% occupancy? No more changes EVER?

Lastly, the term "grandfathered" is that cut and dry? The reason is we proposed a motion to change the rules to read: l)“Grandfathered” changes which do not fall in line with these current regulations and are in need of repair shall be repaired/replaced in such a manner so as to conform to these current rules and regulations.

...and got flack from that same one guy....(makes you wonder why HE didn't run for the Board eh?)

Thank you guys so much, this is truly a great forum for reference & peace of mind.

Doing a bit of research, I think the technical term for what we are trying to accomplish is to "vote-by-mail" as the measure for voting in modified/new rules. I'm having a hard time finding WI guidelines or suggestions how to best to accomplish this.

You've answered most of your own questions however --
1. I believe you need 51% of the membership from what you quoted. Still confused on what kind of rules we are talking about though.
2. Apparently you are a young association -- has the builder been not obeying the rules (and which ones). I don't understand who has been doing the grandfathering. If a house is delivered to the owner with a railing you don't like and the covenants say a owner cannot change the exterior design without permission from the HOA (a common provision)then I would say you cannot force the homeowner to change that railing because it IS the original design. Builders sometimes put anything in that people ask for -- that is not exactly grandfathering.

"There were two items brought to the floor by members and then voted on (in the affirmative) that then bound the entire community to the outcome. So, 50 members passed a measure that effected 800 homes. Unfortunately the board took exception at this and decided to just ignore the vote and have never taken action on those passed motions."

Thanks for answering the question Robert. Your system works pretty much like ours as far as quorum counting. There has been concern here about new items coming up. It seems on the proxy/ballot/whatever the person should be at least be warned that they might not be having their voice heard on ALL the issues that require a vote, but are facilitating all votes to count. (The wording of that statement is pretty poor, I admit, and needs work). It troubles me in particular that the board could withhold issues from the absentee ballot and then "spring" them at the annual meeting. If they got a bunch of their cronies to attend it would be a great way to get things passed that wouldn't be passed normally.

The problem is that our Restrictions (not the Subdivision Restrictions or By-Laws) were adapted from another neighborhood in WI (the original docs even had the wrong subdivison name in the document footer). They are very, very vague and the Developer had turned the management of the Association over to 3 of the 5 builders who in turn, hired a PM company to "interpret" the rules on their behalf.

Consequently, nothing in the rules was adhered to. So, it is our undaunting task to play clean up.

What we are attempting to do is clarify items that were left up to interpretation. For example, nothing was ever mentioned regarding sheds. The PM decided since it didn't say NO then it must be included in the "etc." portion of the rules. Since we have a number of sheds in our subdivision, we would like to propose regulations for the installation. Likewise with the language that states all fences on pond/nature areas must be identical in design and style. That was never adhered to. We need to amend the rules to accommodate their lack of management.

Do I agree with that? Not entirely, but I will not volunteer to ask "violators" to remove their property. So we must find a common ground.

I just spoke with our attorney who agreed that the vague language in our Subdivision Restrictions states that the majority of the majority is required to pass a restriction modification. So if we can get a majority to respond to the issues, then the majority vote on those issues will stand.