Approved ACC request, new board is trying to cancel it

AdamL1 (UnitedStates)
Posts: 559

Posted:

Curious about this.

I've got an approved ACC request from last year to do some landscaping and maintenance. The ACC request was extremely detailed, included drawings, specific planting varieties, berm/elevation shapes, etc. This was completely signed and approved by the ACC and Board at the time.

With a new Board, they are getting twisted up about the work I am starting to complete, saying they do not approve and are canceling the request.

Advice for navigating this situation?

AugustinD
Posts: 3,698

Posted:

To me, and unfortunately, you are up against board ignorance.

When you started the work, and started putting money into it, you had an approval in hand.

Now this new Board wants to re-neg.

On the one hand:
My recollection of the case law is that, once one party (call this party, "Party X") starts relying on an agreement with another party (call this party, "Party Y") to the point of spending money to do what the agreement permits, then Party Y darn well needs to either back off or plan on compensating you. It's basic fairness.

On the other hand:
If the prior Board approved your plan and your plan in fact violates the covenants, then the new Board should consider re-negging. It should also seriously consider compensating you.

I could not say more without knowing a lot more details, like why the board is re-negging, how much you have spent, and so on.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Agree with Aug.

I would suggest writing the board (and keep everything in writing from this point forward), and tell them that you acted in good faith. In compliance with the governing documents, you sought and received approval for the work. If the board chooses to cancel that approval, that you expect compensation for the work already completed as well as the cost to return the property to how it was. Specify that you believe that this is a fair request under and contract (which the association entered into when they approved the plans) and that the board may want to consult an attorney prior to making any final decision.

Send it via certified mail with a copy to each board member.
OR send it via email to all board members, return receipt requested (an option in the email system).

AdamL1 (UnitedStates)
Posts: 559

Posted:

Some details: there's a strip of 'common property' drainage creek behind about 20 homes. This strip is totally landlocked and isolated, only directly adjacent units can access. the CCR's state and require that each Member maintain and landscape the area directly abutting their property up to a 4' setback from the water line, and then the Master HOA is required to maintain the rest of the strip. Our HOA has a 30-year history of active neglect and refusing to allow members to clean up 30-years of debris and tree trimming. Even going so far as to put in writing that they would rather abandon the property to the county than let homeowners clean it up.

We, reading our CCR's of course, and desiring a return to good land management and stewardship, submitted a detailed plan to clean and fix it up directly behind our house, at our own cost. This was approved. We started doing work and actually removing truckload after truckload of debris....and then all of a sudden, the new Board decided they didn't like seeing us 'using' and 'cleaning' up HOA Common Property.

==================================================
CCR: Architectural Committee Decisions. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the address set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article XI shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials with the Architectural Committee.

CCR: Non-Liability of Architectural Committee Members. Neither the Architectural Committee nor any member thereof, nor its duly authorized -Architectural Committee representative, shall be liable to any Association, or to any Owner or Grantee for any loss, damage or injury arising out of or in any way connected with the performance of the Architectural Committee's duties hereunder, unless due to the willful misconduct or bad faith of the Architectural Committee. The Architectural Committee shall review and approve or disapprove all plans submitted to it for any proposed improvement, alteration or addition, solely on the basis of aesthetic considerations and the overall benefit or detriment which would result to the immediate vicinity and to the Property generally. The Architectural Committee shall take into consideration the aesthetic aspects of the architectural designs, placement of building, landscaping, color schemes, exterior finishes and materials and similar features, but shall not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of any plan or design from the standpoint of structural safety or conformance with building or other codes.

AugustinD
Posts: 3,698

Posted:

I think TimB4's suggested plan is terrific.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Unless the CCRs provide a mechanism to revoke an approval, I don't see how they legally can.

Escaped former treasurer and director of a self managed association.

AugustinD
Posts: 3,698

Posted:

My last post overlapped with AdamL1's post elaborating on the situation.

"Mistake upon mistake."

-- The prior Board or the ACC or both failed to realize that is is not supposed to be letting anyone but vendors with the right licensing yada do any work on common property. What if an owner cut off her foot with that bush hog brush cutter she rented to cut back the mess on the common area?

-- The owner (you) should have known from the covenants that you are not to be doing work on the common area, period. (Go ahead and b---- at me for this. Do rub in that I, Aug, am known to have taken trees down on common area, and doing other common area odd jobs, at a certain HOA where I used to live, all board approved, all on bona fide community clean up days. Everyone still has their feet, hands, toes and fingers. But we just got lucky.)

-- What is it exactly that the Board wants now? For you to do no further clearing of the brush and debris? If so, then go ahead and ask for compensation for what you paid to date. Expect to be turned down, because you should have known better than to go do work on common area land. I know, I know. Not fair. Like I wrote: mistake upon mistake.

-- Does the Board wants you to put back the brush and debris?

-- Try not to let this kerfuffle get you down. You know by now it is the price of HOA living.

-- If you want the brush and debris gone, to improve your view et cetera, you probably would have to lawyer up. There's no guarantee of success. This is just not a very black and white situation, even by a "Best Reading" of the facts here.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 03/08/2022 1:47 PM
My last post overlapped with AdamL1's post elaborating on the situation.

"Mistake upon mistake."

-- The prior Board or the ACC or both failed to realize that is is not supposed to be letting anyone but vendors with the right licensing yada do any work on common property. What if an owner cut off her foot with that bush hog brush cutter she rented to cut back the mess on the common area?

-- The owner (you) should have known from the covenants that you are not to be doing work on the common area, period. (Go ahead and b---- at me for this. Do rub in that I, Aug, am known to have taken trees down on common area, and doing other common area odd jobs, at a certain HOA where I used to live, all board approved, all on bona fide community clean up days. Everyone still has their feet, hands, toes and fingers. But we just got lucky.)

-- What is it exactly that the Board wants now? For you to do no further clearing of the brush and debris? If so, then go ahead and ask for compensation for what you paid to date. Expect to be turned down, because you should have known better than to go do work on common area land. I know, I know. Not fair. Like I wrote: mistake upon mistake.

-- Does the Board wants you to put back the brush and debris?

-- Try not to let this kerfuffle get you down. You know by now it is the price of HOA living.

-- If you want the brush and debris gone, to improve your view et cetera, you probably would have to lawyer up. There's no guarantee of success. This is just not a very black and white situation, even by a "Best Reading" of the facts here.

I'm not sure I follow what you mean. It certainly seems you took a lot of artistic interpretation of the posting and made up your own assumptions.

1. The CCR's require homeowners to maintain and landscape the common property directly behind their parcel.
2. The CCR's also require the HOA itself to maintain and generally keep proper stewardship of the area, which they have failed to do. Even more so for safety issues (specifically said in CCR's).
3. There's numerous safety issues from fire risk (30 years of leaves and debris stacked 6 feet thick right behind wood shingle houses) to fall/drowning risk from un-firmed water edge and 30-years of silt and mud that could kill a small kid..

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM

the CCR's state and require that each Member maintain and landscape the area directly abutting their property up to a 4' setback from the water line, and then the Master HOA is required to maintain the rest of the strip.

I take it the above is why you wrote that the CCRs require owners to maintain common area.

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM

Our HOA has a 30-year history of active neglect and refusing to allow members to clean up 30-years of debris and tree trimming. Even going so far as to put in writing that they would rather abandon the property to the county than let homeowners clean it up.

Isn't the Board itself violating (or certainly ignoring) the covenants when it tells owners to stay off certain common area land that the CCRs expressly (according to you) state you owners are to maintain?

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM
We, reading our CCR's of course, and desiring a return to good land management and stewardship, submitted a detailed plan to clean and fix it up directly behind our house, at our own cost.

If you owners were doing exactly as the CCRs allowed, how come you sought permission? Is the only reason you asked permission because the Board would have hassled you all (per past experience)?

I think this is a big enough you-know-what, going on for many years, and yes with the risks you proposed, that you all should seek mediation.

Or you could do what the covenants say you are allowed to do and see if the HOA's attorney comes after you. Which then will be a bit like the court scenario I posted at

https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/304243/view/topic/tpage/2/Default.aspx

though possibly more in the favor of the owners.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM

==================================================
CCR: Architectural Committee Decisions. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the address set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article XI shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials with the Architectural Committee.

So now I'm being told that the ACC conditionally approved but wanted to verify landscaping choices with the Landscaping Committee, and since the Landscaping Committee never replied and approved, the Board is claiming the whole application is thrown out and not valid. We have in writing from the ACC that they approve and are looking forward to the cleanup and commending our design choices and details.

Searching CCR's, there's no mention of "Landscaping Committee" anywhere....just that the Board can create new committees via Resolution, and they must have a defined scope/charter/authority/etc. Historically, this Landscaping Committee has helped manage the lawn contracts to ensure there's pretty flowers on the street corners. And there certainly is no record or history of the creation of a Landscaping Committee.

So what are your thoughts on this now? CCR's say there's a timeline to approve and silence means automatic approval. Also, no authority granted in CCR's to a Landscaping Committee...

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 03/08/2022 4:00 PM
So now I'm being told that the ACC conditionally approved but wanted to verify landscaping choices with the Landscaping Committee, and since the Landscaping Committee never replied and approved, the Board is claiming the whole application is thrown out and not valid. We have in writing from the ACC that they approve and are looking forward to the cleanup and commending our design choices and details.

Searching CCR's, there's no mention of "Landscaping Committee" anywhere....just that the Board can create new committees via Resolution, and they must have a defined scope/charter/authority/etc. Historically, this Landscaping Committee has helped manage the lawn contracts to ensure there's pretty flowers on the street corners. And there certainly is no record or history of the creation of a Landscaping Committee.

So what are your thoughts on this now? CCR's say there's a timeline to approve and silence means automatic approval. Also, no authority granted in CCR's to a Landscaping Committee...

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM

Some details: there's a strip of 'common property' drainage creek behind about 20 homes. This strip is totally landlocked and isolated, only directly adjacent units can access. the CCR's state and require that each Member maintain and landscape the area directly abutting their property up to a 4' setback from the water line, and then the Master HOA is required to maintain the rest of the strip. Our HOA has a 30-year history of active neglect and refusing to allow members to clean up 30-years of debris and tree trimming. Even going so far as to put in writing that they would rather abandon the property to the county than let homeowners clean it up.

We, reading our CCR's of course, and desiring a return to good land management and stewardship, submitted a detailed plan to clean and fix it up directly behind our house, at our own cost. This was approved. We started doing work and actually removing truckload after truckload of debris....and then all of a sudden, the new Board decided they didn't like seeing us 'using' and 'cleaning' up HOA Common Property.

==================================================
CCR: Architectural Committee Decisions. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the address set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article XI shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials with the Architectural Committee.

-- To me, it's still mistake upon mistake.

-- I am not persuaded that the requirement for certain owners to maintain certain patches of common area means an ACC application needs to be submitted.

-- Arguendo, let's say an ACC application is required. I do not consider the response to be silence. The response was to get this Landscaping Committee's approval. (I do understand if you consider the response to be silence.) Once this condition has been set, the clock changes. To what exactly I could not say. All I can say is that the ACC said, 'hang on while we check with so-and-so.' You forged ahead.

-- I do not think the whole application is invalid.

-- It seems to me you are working with a Board that has not consulted its attorney and should consult its attorney.

-- What is it you want at this point? If you want to go forward with your plan without being hassled, then you can keep trying to communicate rationally with these folks. But one of the problems is how murky the Covenant is regarding owners maintaining certain patches of common area.

-- Tell the Board what you want to do; what you think the covenant says; and that you request a mediator.

-- I doubt there is going to be a nice clean outcome anytime soon.

BenA2 (Texas)
Posts: 1,273

Posted:

Unless their is a requirement that you complete the project in a particular time period or a specific clause in your CC&Rs that gives the new board an option to change their mind, I would tell them that you have approval and invite them to pack sand.

I would be civil but they are clearly wrong here so I don't think you owe them more than that.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 03/08/2022 4:35 PM

Posted By AdamL1 on 03/08/2022 4:00 PM
So now I'm being told that the ACC conditionally approved but wanted to verify landscaping choices with the Landscaping Committee, and since the Landscaping Committee never replied and approved, the Board is claiming the whole application is thrown out and not valid. We have in writing from the ACC that they approve and are looking forward to the cleanup and commending our design choices and details.

Searching CCR's, there's no mention of "Landscaping Committee" anywhere....just that the Board can create new committees via Resolution, and they must have a defined scope/charter/authority/etc. Historically, this Landscaping Committee has helped manage the lawn contracts to ensure there's pretty flowers on the street corners. And there certainly is no record or history of the creation of a Landscaping Committee.

So what are your thoughts on this now? CCR's say there's a timeline to approve and silence means automatic approval. Also, no authority granted in CCR's to a Landscaping Committee...

Quote:

Posted By AdamL1 on 03/08/2022 1:31 PM

Some details: there's a strip of 'common property' drainage creek behind about 20 homes. This strip is totally landlocked and isolated, only directly adjacent units can access. the CCR's state and require that each Member maintain and landscape the area directly abutting their property up to a 4' setback from the water line, and then the Master HOA is required to maintain the rest of the strip. Our HOA has a 30-year history of active neglect and refusing to allow members to clean up 30-years of debris and tree trimming. Even going so far as to put in writing that they would rather abandon the property to the county than let homeowners clean it up.

We, reading our CCR's of course, and desiring a return to good land management and stewardship, submitted a detailed plan to clean and fix it up directly behind our house, at our own cost. This was approved. We started doing work and actually removing truckload after truckload of debris....and then all of a sudden, the new Board decided they didn't like seeing us 'using' and 'cleaning' up HOA Common Property.

==================================================
CCR: Architectural Committee Decisions. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the address set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article XI shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials with the Architectural Committee.

-- To me, it's still mistake upon mistake.

-- I am not persuaded that the requirement for certain owners to maintain certain patches of common area means an ACC application needs to be submitted.

-- Arguendo, let's say an ACC application is required. I do not consider the response to be silence. The response was to get this Landscaping Committee's approval. (I do understand if you consider the response to be silence.) Once this condition has been set, the clock changes. To what exactly I could not say. All I can say is that the ACC said, 'hang on while we check with so-and-so.' You forged ahead.

-- I do not think the whole application is invalid.

-- It seems to me you are working with a Board that has not consulted its attorney and should consult its attorney.

-- What is it you want at this point? If you want to go forward with your plan without being hassled, then you can keep trying to communicate rationally with these folks. But one of the problems is how murky the Covenant is regarding owners maintaining certain patches of common area.

-- Tell the Board what you want to do; what you think the covenant says; and that you request a mediator.

-- I doubt there is going to be a nice clean outcome anytime soon.

I agree that its uncertain if an ACC request was even needed...Any case law on this? I think I've read that even if you are 'not restricted,' if you submit an ACC request for it, you are now bound to that jurisdiction. Anyone help verify?

I appreciate your responses, but I think you are still taking quite a lot of liberty with your readings and understanding....

- we did not "forge ahead". We waiting nearly a month and there was no response. We then "forged ahead" as detailed in the ACC submission, to which the ACC agreed.

so much agree about the board and atty....however it seems quite clear to me the board does not want to be 'advised' of what's right. They've changed atty's 3 times in the last 6 months. I think they will continue until they find someone that tells them what they want to hear. We've also made it quite clear and detailed exactly all the various CCR sections and state laws on this topic (and many others.)

Mediation....oh boy. We've been asking for a hearing/mediation/discussion about this and many other topics for more than a year now...In fact, the board has stated in writing "there will be no discussion until you comply." They really are begging for legal issues, and they've been warned about their Fiduciary Duty and lack of D&O coverage if it gets that far.

BillD16 (Texas)
Posts: 974

Posted:

This sure seems to be a trainwreck. One thing:

Quote:

Posted he ABy AdamL1 on 03/08/2022 4:00 PM

Posted By AdamL1 on 03/08/2022 1:31 PM
m t
We have in writing from the ACC that they approve and are looking forward to the cleanup and commending our design choices and details.
…
CCR's say there's a timeline to approve and silence means automatic approval.

I’m a bit confused: Do you indeed have written approval from the ACC? If so, I’m not sure how “silence means automatic approval” has any place in this discussion.

If you’ve got written permission from the ACC - and given that it sounds like you’ve put some money into this work - I think I would (as someone else suggested) restrict all of my communications on this matter to certified mail, and furthermore I’d be looking for a lawyer. Just my naive opinion. People are always talking about “suing over this” or “suing over that” but in my albeit limited experience this fact pattern: “HO gets approval / HO spends money / HOA ‘changes it’s mind’” is one that really does lead to a lawsuit.

BillD

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 03/08/2022 5:16 PM
I agree that its uncertain if an ACC request was even needed...Any case law on this? I think I've read that even if you are 'not restricted,' if you submit an ACC request for it, you are now bound to that jurisdiction. Anyone help verify?

I appreciate your responses, but I think you are still taking quite a lot of liberty with your readings and understanding....

- we did not "forge ahead". We waiting nearly a month and there was no response. We then "forged ahead" as detailed in the ACC submission, to which the ACC agreed.

so much agree about the board and atty....however it seems quite clear to me the board does not want to be 'advised' of what's right. They've changed atty's 3 times in the last 6 months. I think they will continue until they find someone that tells them what they want to hear. We've also made it quite clear and detailed exactly all the various CCR sections and state laws on this topic (and many others.)

Mediation....oh boy. We've been asking for a hearing/mediation/discussion about this and many other topics for more than a year now...In fact, the board has stated in writing "there will be no discussion until you comply." They really are begging for legal issues, and they've been warned about their Fiduciary Duty and lack of D&O coverage if it gets that far.

-- You're right; I am doing a poor job here. I find the situation messy and difficult to parse.

-- Re case law: To do a search I would have to be able to finger the salient legal issues here. According to you, the covenants require certain owners to maintain certain parts of the common area. Yet your small sub-group of owners does not own this common area. Why would this sub-group of owners be required to maintain this common area (with all the legal risks and liabilities to both sides of doing so)? Ugh, messy. I think it's a hard core land ownership or land maintenance dispute.

-- Toss in that IIRC this common area is also legally overseen by a state agency, since it has a formal designation as either open space, conservation area or similar. I am wondering if the Board is now using the latter fact to tell owners to stay off this common area and let the common area revert to its 'natural state.' (I am not purposely trying to take a side against you. I am trying to be on the side of the facts here, as best as I can understand the facts. I think my understanding is lousy.)

-- Three attorneys in six months? Wow.

-- I am still not clear what the Board wants from you at this point. Does the Board want you owners to just stop cleaning up this common area?

-- Lawyering up, and so forcing mediation, seems the only way to get this settled at not too much cost. I think it may take a couple years even with mediation.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 03/09/2022 1:54 AM
Why would this sub-group of owners be required to maintain this common area (with all the legal risks and liabilities to both sides of doing so)?

I realize the answer to this question is probably, "Because this sub-group of land owners has direct access to this common area. The only way for the HOA to access this common area is via, say, an easement on the lots belonging to one or more individual owners, or maybe special permission of the land owners."

IIRC this arrangement was conceived some 25 or so years ago. Undoubtedly with developers forcing the issue with the city, county and state. To review the basics: Developers are powerful, as their work tends to drive the cogs of city, county and state economies. Buy "vacant" land; get approval to build; employ workers to build housing; the population will increase; and all manner of economic stimulation will commence for at least a few years. [sarcasm] God knows we can never have enough economic stimulation.[/sarcasm] This mindset dismays me, as I think it may partly or largely explain why the world is facing a once-in-every 100(?) generations global Tragedy of the Commons.

The common area maintenance arrangement probably looked so good on paper, back in the 1990s or so. Mostly what looked good to all the main players was all the money they would make by brokering such an arrangement?

In practice, the arrangement appears to be dumb.