VA Condo Assoc fining us for rule that doesn't exist, against state law, and supreme court ruling.

It all started when we first got a letter saying we need to C&D harassing the geese "shooing them off" with a remote control car. That it was an illegal activity. I sent a copy of this letter to the USDA and the USDA replied stating it was perfectly legal citing "§ 21.41 - Depredation permits" which states: No permit is required merely to scare or herd depredating migratory birds.

The Condo Assoc/board obviously didn't like this response, and each email/letter we received constantly evolved with a new reason/excuse as to why we couldn't shoo them away. With each response we specifically requested they cite which rule in the bylaws we were violating or which rule gave them the authority to fine us for such a thing.

They "both the board, condo assoc. "manager", and 2 lawyers" have all quoted the following bylaw stating it gives them full authority over the common grounds. In all actuality it's just a maintenance clause: SECTION TWO: UPKEEP OF THE CONDOMINIUM. All powers and responsibilities with regard to maintenance, repair, renovation, restoration, and replacement of the condominium shall belong (1) to the Unit Owners' Association in the case of the general common elements, and (2) to the individual unit owner in the case of any unit and-limited common elements appertaining thereto or any part thereof. Each unit owner shall afford to the other unit owners and to the Unit Owners' Association and to any agents or employees of either such access through his unit as may be reasonably necessary to enable them to exercise and discharge their respective powers and responsibilities. But to the extent that damage is inflicted on the common elements or any unit through which access is taken, the unit owner causing the same, or the Unit Owners' Association if it caused the same, shall be liable for the prompt repair thereof.

They have never quoted this bylaw: PAGE 12: SECTION EIGHT: RULES OF CONDUCT. (a) Residents and guests shall exercise extreme care in making noises or using musical instruments, radios, televisions, and amplifiers that may disturb other residents.

BUT! they have quoted a rule in our "handbook" that says: DISTURBANCES: No home owners, their tenants, guests, families or invitees shall make or cause to be made any noises, music or disturbances which shall annoy or disturb other residents.

It's very important to know that our handbook is not a legal document and is not filed in circuit court. It's also prefaced stating it's just an outline of the declaration and bylaws. Nothing more. Nothing less. This is page 1 of the "handbook":

PREFACE TO THE % % CONDOMINIUM ASSOCIATION RULES & REGULATIONS
This booklet lists and outlines the condominium Rules & Regulations which were created with authority vested in the Board of Directors by the Virginia Condominium Act and the Cedar Lakes Condominium Association, Inc., Declarations and Bylaws. The Rules and Regulations set forth standards which all unit owners, their tenants, guests, friends, families, invitees, etc., are to comply with to insure a quality standard of lifestyle for all residents.

==
The board held a meeting. We, for obvious reasons, didn't attend. They sent us this letter: Due to the ongoing nature of this issue, and the distress it causes other residents, a violation hearing was held at % at the clubhouse. We are sorry that you did not attend, and the Board held the hearing in your absence. The board discussed the ongoing non-compliance and determined that $50.00 per violation occurrence, in accordance with the Virginia Condominium Act, would be assessed to your account. We have added two instances that you were personally witnessed by the Board President for a total of $100. Going forward, your account will be assessed a $50 fee each time you are observed harassing the geese or causing any other nuisance, including parking nuisances.

-not even going to get into the parking issue, but it's an equally entertaining story.

More recently their attorney acknowledged the email from the USDA and stated that she was aware that harassing the geese was legal. That the issue wasn't with me harassing the geese but was with the time and manner in which I chose to do so. She didn't go into detail about the manner... which I assume was using my RC car or my laser pointer, she did however state I was doing this at 2AM which is not true.

We replied to her email stating that the fines are in violation of VA State Code "55-79.42:1" and VA Supreme Court case ruling "Shadowood Condominium Association v. Fairfax County Redevelopment and Housing Authority" which states the board cannot impose penalties for violations outside of the Declaration and By Laws. We also asked if it was legal why all of our fines say "$50 harassing the geese" and to remove the fines - no response to date.

==
To further paint a picture: They send us tons of other emails with baseless accusations stating I put a camera on my RC car and was recording the neighbors and that it's considered harassment. That I'm harassing and intimidating the neighbors to the point they feel unsafe in their own home, etc. All which are untrue. Over the course of two weeks I had one lady try to dump a bucket of water on head, people outside screaming at me, cursing at me, following me around with cameras, and one older guy even grabbed my arm. Luckily that happened in front of my security camera and I was able to press assault charges against him. We notified management, with PROOF "images/video" and their response was "I'm sorry the neighbors feel the need to record you for their own protection", "VA is a one party state, the neighbors are perfectly within their right to record you, I CANNOT STOP THE RESIDENTS FROM DOING SOMETHING THAT IS PERFECTLY LEGAL". They also say that just me using the common grounds "walking around the lake" is lurking and that it's making the residents feel uncomfortable. They didn't acknowledge the physical assault at all.

So if someone lies about me doing something, it's harassment and they are gravely concerned. If the neighbors do it, and I have proof, it's for their own protection. If the other residents are doing something that's legal it's OK, but if I'm doing something that's legal they fine me for it. I'm currently researching if there's an age/sex discrimination lawsuit here, probably not, in addition to the obvious lawsuit.

I'm afraid, aside from the emails where they keep evolving their reasoning, and other emails with several other baseless accusations, this is everything.

It's illegal C&D. "it's legal"
It's animal cruelty. "it's not"
They have full control over the common grounds. "they don't"
It was causing a general disturbance. "my quiet use of the common grounds doesn't constitute a disturbance simply because other people don't like how I'm using it"
It was interfering with the quiet and peaceful enjoyment of the common grounds. "nobody uses the common grounds because they're full of goose poop and I don't use the rc car within 50' of anyone
It was interfering with the quiet and peaceful enjoyment inside of the units. "they're talking about the geese honking but they do this without human interaction as well"
It's causing an audible disturbance. "the toy is electric/silent"

You sound like our board. "All legal details aside". I do enjoy "community living". It's the members on the board and a select few residents that are treating the development like a retirement community that are better suited elsewhere. It says on our neighborhood sign "a lifestyle community". If they wanted to sit around and watch geese poop all day maybe they should "re-assess" if they want to live here. I'm in the process of getting a petition signed to amend the bylaws to expressly give owners the right to shoo the geese away and have, so far, received overwhelming support. Several members have thanked me for my efforts in reducing the amount of goose droppings and are happy to be able to walk to the clubhouse, walk their dogs, or just enjoy the common grounds in general, without stepping on goose poop.

Even if a few people vaguely agree with what your doing but would never dare to do it themselves....... and the majority of people dont want you to do something, your not community living. Your the enemy for rocking the boat.

Doesn't really matter if its geese or anything else..... not the point.

What did the police and district attorney do? Was the guy actually charged with assault and/or battery?What is it that you expect the board to do about the physical assault? Nationwide, when things get physical (as in an assault) between two HOA members, I believe conventional legal wisdom is to leave this to the police and also advise the HOA member get an attorney and see a civil restraining order.

Stupid to not attend? They wanted to fine me for harassing the geese. I wasn't going to entertain their abuse of power so they could use the forum to continue their posturing. We were also advised by a lawyer not to attend considering.

They're trying to fine me in violation of a rule we didn't agree to in our governing documents. They were doing it for intimidation purposes only. They had no intention of listening to anything we had to say as evident in the responses I've provided in my original post.

YEP ... FULLY understood they wanted to fine you for something TOTALLY STUPID!!! So ... if the issue ends up in a Court of Law what will you tell a JUDGE as your reason for not attending their supposed “abuse of power” meeting??? YEP that meeting which most likely your CCR’s require of your BOD to have regarding any complaints??? While I am not an attorney ...I suggest you consider a different attorney if he gave that actual advice.

JR13, you seem like the guy who enjoys commotion, and likes to stir the pot. When folks are annoyed by you, I get the feeling you enjoy this, and rather than trying to show them consideration, you instead do the opposite and try to annoy them more, because you are mad that they were annoyed in the first place... and so you seek to annoy them more. And I'm sure you feel justified and believe you are the good guy battling bad guys. This character trait is both good and bad... depending on context.

I'd like to know the ratio of residents who consider you a nuisance vs. those who are glad to have you as a neighbor. If you don't have overwhelming majority support behind you, then IMO, you should chill out, and really are the nuisance.

But if you are correct in saying that you have "overwhelming support from your neighbors", then maybe those who are annoyed by you really are the ones who should consider moving to an actual retirement community with stricter rules.

It all really comes down to "like-mindedness" of the majority. If you offend the majority, then the HOA is going to win here. If you instead are supported by the majority, then you have a chance to prevail -- but you should be ready to become a board member, and recruit a few others to take over the board, and make the board align to the "majority thinking" rather than catering to the grouchy minority (as you seem to indicate).

You are walking in gray territory, and no matter if you have a case or not, if the board remains in power, and has the general support of the HOA, you are screwed, and will find yourself in court. Once the attorney's get involved, costs skyrocket. Are you prepared for that risk and commotion? Is it worth it to you?

Your only hope here, IMO, is to plan a coupe, and vote in a new board (you included) who are like-minded with the majority of the HOA. But without that type of support, you're gonna get screwed, most likely. That's just how it seems to usually work out.

Your argument is invalid. Nothing we are doing is against the ccr's/state law/federal law. Someone simply not liking an activity I partake in is not grounds for them to fine me unless some form/part of it is expressly prohibited.

Imagine buying a condo, walking outside with a red shirt, and your neighbors harassing you over it, your board fining you for it, coming to an HOA forum for suggestions, and having someone tell you: You seem like the guy who enjoys the commotion and likes to stir the pot, i know there's no rule against you wearing a red shirt but I would really like to know how many of your neighbors are bothered by it, if you don't have overwhelming support from your neighbors to wear the red shirt then, IMO, you should chill out and really are the nuisance.

I understand you feel your actions were neither (a) a nuisance nor (b) in any way a violation of the CC&Rs and rules.

Do you want the fines removed? If so, I think the appropriate steps to take are those given in Virginia Code 55.1-1904. In so many words, 55.1-1904 directs condo members with a grievance like yours to file a complaint with a Virginia government entity called the "Common Interest Community Board" (CICB). See https://law.lis.virginia.gov/vacode/title55.1/chapter19/section55.1-1904/. For information on contacting the CICB, see http://www.dpor.virginia.gov/Boards/CIC-Board/

You mentioned age and sex discrimination. From my extensive experience, I see nothing that can legally support such a claim. I grant that, sometimes, one cannot tell why others are giving one a hard time. It may be because or age or gender. But the courts want to see substantive proof that age or gender is the cause. I do not see this.

I agree, after reading some articles online about discrimination lawsuits, that it would be extremely difficult for me to prove that. We've contact DPOR and they said they couldn't help as they can't look at or use the CCR's to make a decision, but now that we have a letter from their lawyer stating the action is legal, and our fines which state it's what they're fining us for maybe we can present that to them. I'll report back.

I, too, read through everything the OP provided.

My sense is that the neighbors are weirded out by little cars racing around after the geese. As I stated, I hate these geese ... so, don’t take this as a support the geese comment.

But, I have a feeling, given the tone of the OP, that there is more there, there, than just the geese. The neighbors may be so on edge they are looking for anything to help the OP decide it is a place the OP doesn’t want to live.

They aren't weirded out, they are in a full blow out rage over it. Cursing at me, assaulting me, filing false reports to management, etc. There's nothing else to it, it's just the geese. Our fines literally say "Harassing the Geese $50". You are right however as they are indeed looking for anything possible to make living here less enjoyable and have not held back at all.

So Virginia's government agency DPOR CICB has turned you away. You are waiting to hear more from the condo board on the fines. If the board insists on continuing to impose the fines, then consider sending a "letter of demand" like the following. Or you could send it immediately and let this all percolate further. Send the demand letter certified mail, return receipt requested.

======Start Draft Demand Letter==========

Dear Condominium Board of Directors,

The Association has fined me for shooing away geese, alleging this is a nuisance. Pursuant to the authorities listed at the bottom of this letter, I do not think the Board can lawfully fine me for an action not expressly prohibited by the Declaration and Rules. Also, I believe "nuisance" is too vague. How exactly are my actions, which help relieve individual units of the mess of geese excrement, a nuisance? I believe the Association's governing documents must be more exact in defining what a "nuisance" is in this instance.

The hearing the Association notified me about in August lacked proper legal notice, pursuant to Virginia Code 55-79.80:2 and Virginia Code 55.1-1959 and so was a denial of due process.

For the above reasons, please remove the fines imposed on my account. If you do not remove the fines, I will have no choice but to file suit in Circuit Court.

Please let me know your decision by March 28.

Thank you,

[name]
[address]
[phone number]
[email addie]

Authorities:
Virginia Code 55-79.42:1/
Virginia Code 55-79.80:2/
Virginia Code 55.1-1904/
Virginia Code 55.1-1959/
Shadowood Condominium Association v. Fairfax County Redevelopment and Housing Authority, 2012, an unpublished order of the Virginia Supreme Court, copy available upon request.

=======End Draft Demand Letter===================

It seems you have a lot of facts on your side. And I agree with your sentiment that associations do not have total dominion over everything; there is a patchwork of laws and other factors that challenge any notion of total control.

But again, what harm would it do you to just leave the geese alone, or maybe alter your behavior with the car a little since it is common area and not exclusively yours?

It wouldn't do any harm if I left them alone. I understand the common grounds are not mine exclusively. I do however pay over $200/mo in condo fees and am entitled to use them. I never partake in any shooing of the geese near anyone. I always distance myself from anyone when I'm doing this. Sadly, the only people that use the common grounds near the lake are the people who come out to harass me. The land slopes down to the lake so residents don't usually use this area as it's hard to walk on. When they do, even though I know they're out there to harass me, I distance myself from them. I go out of my way to make sure I don't intentionally upset anyone, including these people.

When we first moved here there were so many geese you couldn't walk anywhere. They would run out of places to poop and in groups of 50 come out and poop in the street. Every square foot of common grounds "grass" had a minimum of 10-15 turds in it. No exaggeration. My toy poodle accidentally got some in her mouth and the vet bill was $3000. She got so sick. It was the worst. The Condo Assoc. is required to maintain the grounds. We are required to pick up after our pets but with the amount of goose poop I'm not sure why. I attended a board meeting and presented them a FREE option that the USDA presented to me in regards to getting a permit to oil the eggs. I even offered to pay for the corn oil and do it myself. They, I have this recorded, screamed "NO! That's going to cost thousands! NO, Uh-uh, nope" and refused to email the guy at the USDA for more information, or even go to the website to see for themselves.

But in short. No harm, I could walk my dog across the street outside of the development but would prefer to walk her here. It's where we live after-all. And I keep the toy car away from everyone. I'm not waiting for someone to come outside so I can go drive it by their feet.

The geese: https://www.youtube.com/watch?v=4iuyrfcjgi0

Is your dog getting sick the real motivation you have here? Like are you really trying to reduce the population of geese meaningfully at the condo? I figured you might just think it's "fun" to watch the geese fly away from the car (and regardless, we all know that this is probably fun for you).

Since the fine is just $50, I would recommend just paying it. It's not worth the fight over $50.

Next, you should actually talk with the board about forming a petition to support your "good work" (of trying to run off some geese). And get agreement from them that they'll agree to permit your good work, if you get a certain number of signatures on the petition, etc.

OR -- if they are resistant to heed to opinion of the majority -- are prepared to replace them? (run for the board yourself, with a couple others?)

If the board doesn't want to heed your petition (i.e. doesn't care about majority opinion), then you are probably screwed. AugustinD's advice is golden. He's a gem. Maybe his advice can work for you.

But the easiest way to fight this is to just replace the board with yourself and a few others. Then you can change the rules for common ground. Replacing them is much easier/cheaper than fighting them in court, IMO, unless you have money to spare (fronting an attorney's fees) and are confident that you'll win.... but if you lose, you'll owe ALL ATTORNEY FEES. So I recommend just replacing the board with new members -- it's lower risk, and probably less work, and in the end, guaranteed to get you the result you want.

Good luck with whatever you do.

I bet more than one member of JR13's condo has quipped that those damned geese should be paying a monthly assessment. Nice video.

JR13, I'd make sure to tell the board about what happened to your dog. Maybe it will help get the fine lifted.

DeidreB: Ha, you're funny, regarding your HOA's geese fleeing to JR13's HOA.

I'd like to see a video now from your RC car as you run off those geese. It just sounds like a fun activity; I know I'd enjoy it.

So what are your next steps?

JR,

Obviously, you are passionate about this issue.

From what you wrote, I see the issue heading to court to be resolved.

The question becomes, how much are you willing to spend?

It is what most people call a *ick move. Chasing geese off with a toy car? Really? You want to fight this? About the dumbest thing to go over court and sue your neighbors about. Especially since it is NOT a one person thing to do. It's a GROUP thing to do.

Reality is that you live with a group of Geese lovers. If you did not, guess what? They'd all have a meeting on the front yard with their remote control cars chasing geese off. Otherwise, the RIGHT approach is to go to the board and present ideas of running off the geese off COMMON AREA. Live with that decision made if your neighbors want to or not.

BTW: Suing your HOA is suing yourself and your neighbors. So accept this FACT before proceeding.

Yep true colors come out yet again...I stand by my statement.

Cathy, thank you for constructively contributing to the discussion. I'll make you a deal. You walk behind 50 geese picking up their poop all day and I'll stop shooing them away.

We'd love to but our bathroom, storage shed, and kitchen are leaking, there's water intrusion, etc. We have also been going back and fourth with them in regards to making these repairs to the exterior. 2 years later they're finally getting around to it. The second they do this place is going up for sale. In addition to not maintaining the common grounds they aren't maintaining the exteriors either: https://i.imgur.com/Mls0LxY.jpg You can walk up to and stick your hand through the side of most units.