Convert Common Area into a Park / Playground

-- Please confirm: Is the Declarant long gone?

-- Do you have an ordinance from the county that declares exactly what "Tract H zoned with code 0905" means?

-- Is your association a condominium? If it is, then FS 718 covers it. If not, then FS 720 covers it. Please clarify whether FS 718 or FS 720 applies.

-- I agree this appears to violate the CC&Rs. How to proceed depends on whether FS 718 or 720 applies.

-- The HOA is obliged to comply with the federal and state Fair Housing Acts. This means no discrimination against the disabled, unless per chance it is a huge burden to accommodate the disabled.

How exactly does the playground fail to accommodate the disabled? I am not up to speed on this particular aspect of disability discrimination.

Whether it is FS 718 or FS 720 that applies, I believe your CC&R violation argument is legally powerful.

I'm not a big fan of making unnecessary changes to community plans and common areas. People buy into a development like this and some boards feel like this is their property to manage how they see fit. I like to see minimal changes driven by compelling factors like eminent domain, utility installation, etc..

Once changes are made, it seems sometimes local government officials and associations see changing back as a bad business decision because it incurs additional cost and because it proves that it was a wrong decision in the first place to change it. In your case it seems the changes may have been rammed through perhaps without the proper engagement process. However, it also sounds like the playground you describe is pretty minimal in investment which works in your favor I would think.

Random thoughts to the extent they are helpful:

1. I see you have done your homework on your state law if it is indeed the right one (condo versus HOA versus POA). That is great. It sounds like your association may have violated the 75% approval required for material change.

2. I don't know your state law on HOA records but, you should request in writing copies of all HOA Board meeting and association minutes going back to a point in time well before this change became a consideration.

3. I did not see mention of you meeting with your board of directors on this important issue to you. It seems like that should happen at some point if it has not already. They made this decision and could conceivably walk it back. It sounds like the playground is pretty temporary in terms of equipment and structures. Keep it cordial and about the change itself and not the kids.

4. What do your CCRs and By Laws say about approval of material changes to common areas? Did the Board follow those procedures in your Declaration and By Laws? What authority does your board have as per the governing documents? Can they change the common area or just maintain it?

5. What do your CCRs and By Laws say about adjacent property owner approval for material changes to common areas. In some communities, governing documents require a certain percentage of ownership approval to change a common area but also require adjacent property owner-members to approve of any changes as a separate condition of going forward because they are directly adjacent.

6. You say your city refuses to do anything about it. Perhaps the individual employees you spoke to don't want to take it on. In fact if you called code compliance, perhaps this small playground falls below their level of scrutiny. And never mention types of people or ages when you complain about things in the HOA because it is considered a FHA discrimination issue and can make you look like that guy who screams "get off my lawn." Your real issue is that planned green space has been changed to something else without your approval and you think it was done improperly. It doesn't matter who is using said playground -- you bought next to "green space." Now it's something else - it doesn't matter if it's a playground or a community farm or a sun worship center. Look at the city organizational chart. Look for the different offices and departments like environmental,the zoning office, construction oversight, and of course your local district representative. Perhaps your HOA has violated some local ordinances or policies that relate to "deviating from plans." If you complain about the playground being operated improperly, then your HOA will simply improve the playground which is counter to what you want anyway. And look up supervisors and elected officials. Be persistent but cordial and have all your homework laid out. Perhaps one of them will step up when confronted with a compelling argument about an improper change to common areas in violation of the originally approved plat. Schedule an appointment. Be brief, to the point and polite. And be back in a short period of time to follow up.

7. Have you enlisted the support of any neighbors? You don't necessarily need 75% to come to your aid. All you need is a few good neighbors to stand with you to get people's attention and at least revisit this in a thoughtful way. Coach them it' about the change, not the kids. Remember some of your neighbors have kids and may be offended if you make it about the kids. Make it about the loss of greens pace and lack of proper approval.

8. This may be a case where you decide to pay a few hundred to a few thousand dollars to get professional help from a real estate lawyer who does not represent HOAs but rather has a record of helping homeowners in your state who feel they have been wronged by their board. Sometimes a few letters from lawyers can influence a board to do the right thing (if they have indeed done this change improperly).

Good luck with this!

David,
Seems like everyone here is going after different things to look into. I will also give what I would be worried about below.

You mention that you backup the Open Space and you have a Pool and you are losing your privacy. You mention you do not have a fence separating your property from the new Park. My concern is without a fence a child or a teen decided to fall into your Pool or jumps in and drowns. You probably won't have to worry about the Park anymore because you will be stripped of all of your assets by Lawyers and the Parents of the kids harmed. You need a fence to protect and divide your property from the Park while you fight the other fights.

David, please make sure about the type of association you're in. FS 718 is for Condominiums and the section you cite re. material alterations requiring a 75% vote of approval of the owners is valid only for condominium associations. It does not apply to an HOA under FS 720. Your governing documents might require a percentage vote of approval before material changes may be made, but if they don't then the HOA statute is very different than the condo statute in this regard.