Part 2: Does adding stairs add to the "Footprint" of the deck?

Thanks to all who responded to my previous thread about whether adding stairs to a deck constituted a footprint
https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/324398/view/topic/Default.aspx

In summary, a homeowner wants to add stairs to their deck. I provided the language in our declaration and most on this messageboard said it would be prohibited.

There have been some developments, and I should likely add some information I didn't share previously.

The homeowner is a board member, ~1.5 years. Prior to her joining the board, the board denied a petition by other homeowners who wanted stairs of the deck because of the declaration. She claims that during the Q&A at a community meeting last year (when she was on the board) that I (just a board member) responded that I would not deny a homeowner from submitting to the township, and that I said I was OK if the township decided. More recently, she has said that what is said in the declaration is not suitable to her and she is going to pursue this. She added that she's saddened that the board was elected to represent homeowners, many of whom want this, and this isn't taken seriously enough. She continues to go back to what I said during the Q&A of the community meeting.

I should add that the property manager and I looked at a map of the stormwater system, and we estimate only 15 of the 96 townhomes in our community could consider this, since the others have property that is a stormwater area.

A second board member acknowledged it is a complicated issue and said he'll assist this homeowner/board member who wants to add stairs to the deck. Together they approached the township's zoning code officer. The outcome is on the agenda for this week's HOA board meeting, but they have not provided any pre-read information. We have four members on our board since the 5th quit and no one has shown an interest to join.

Unknown to them, that zoning code officer was at my house last Friday to inspect some work I'm having done. I mentioned I was on the HOA board and the first thing he said was that he knew what I wanted to hear about. The zoning code officer started by saying the other 2 board members said they were from the HOA board, but instead of talking about the betterment of the community, they focused on one property. He told me that's a conflict of interest. He told me he doesn't like to say "no," but the township engineer isn't giving him a good answer on this. He said the rules around the zoning easements were not worded correctly (which I think the 2nd board member took issue with), but he is still concerned about stormwater. He said maybe if they dig trenches, do an engineering study, and then pay the township engineer to review it, they could do it, but maybe not. He also said they typically don't like to go against the HOA declaration, which as I mentioned, says it is prohibited, as interpreted by many of you. The more the zoning code officer told me about this, the more he expressed frustration with how these 2 board members had approached him.

The reason I posted the earlier thread was because this 2nd board member questioned whether the declaration actually prohibited stairs (all of you said it did), and he wanted to ask a an attorney he knew from a previous property he was in (instead of our board attorney). That hasn't happened yet.

I informed the 3rd board member and our property manager ahead of our meeting this week when it is on the agenda. The property manager says she is the one who should interact with the zoning code officer, not the 2 board members, one of which is also the homeowner, and they should at least put together a written report.

My and the 3rd board member don't want the board to spend money on an engineering study or to an attorney for new declaration language to be voted on because it only benefits a couple homeowners. How I say it though, is another question. That homeowner/board member can yell a lot.

As one poster replied to your original post: "your docs indicate, "... no exterior addition to, or change or alteration ... of any Unit shall deviate from the ... as installed by the Declarant."

ALL posters agreed, I think. One noted the word "footprint" is a distraction and has nothing to do with the restriction in your docs. I'm curious to know why you're using that word again.

It does *not* matter if OK with the City. Your assn. prohibits it.

I advise anyone who's interested to read this earlier post before they reply here. No drawing is needed

Thanks for the update.

I think your MC is wrong. Anyone can interact with the inspector. Certainly the individual who has the issue.
However, the board should designate one individual to interact with the inspector on behalf of the Association (it could be the MC or anyone else).

i disagree, if steps are needed for fire safety, I'd consider that a repair to the original faulty design. Is the only exit the front of the house? if so that is a big fire safety no no.

your real problem is you didnt' have every board member sign a conflict of interest agreement before they joined the board, and now this shit show had occured.

And that's what these 2 board members want to do. I just don't like using HOA funds to do that.


The zone officer said steps are not needed for fire safety. Units are 4 - 6 years old. All units have a sprinkler system on all floors. The zone officer said only one exit is needed.

Just a thought. Perhaps the steps can be built "inside" the deck footprint.

Arthur

The person requesting the stairs should be prepared to provide the BOD with all it needed at their own cost. Even if the county said OK, this is not approval from the BOD.

Thanks everyone for responding. After looking at what everyone said, here's how I think I will proceed.

1. At the meeting tomorrow, I will insist that no decision can be made because nothing was provided in advance. The 2nd board member just said, "me and homeowner/board member will report on our meeting with township and then we need to discuss next steps." I will ask that given he acknowledged it was a complicated issue, that he write something up first and defer to next meeting. It's not proper to not provide somethig before the meeting if a decision needs to be made. Not sure, but maybe I'll reveal I also talked to zoning officer.

2. I plan to also state the C&R is our rules, and as board members, we need to uphold the rules or look at having it amended.

3. While everyone on this board believes the C&Rs must be amended to allow this, this 2nd board member believes it is open to interpretation. He wants to go to an attorney he knew from another community. I am going to insist that if this is done, the homeowner/board member must initiate it, pay for it, and bring something in writing back to the board (the 2nd board member had offered to pay for it for her, but our Property Manager said absolutely not). Alternatively, I will ask that the Property Manager have the discussion since I struggle with the perception there could be conflict of interests.

4. If they do agree the C&R have to be amended, then I can certainly support that, but if it costs money, raise the issue that it isn't in our budget.

5. If the homeowner/board member gets upset (and maybe I was a bit harsh, the clear time I remember her getting upset, we were all a bit upset), I will raise my concern of conflict of interest and see if she wants to recuse herself from voting on this matter, and if it could be recorded in the minutes.

6. If homeowner/board member brings up that others in the community want it, I will mention that only 15 of the 96 home may even be eligible.

Ultimately, since we only have a board of 4, one of whom is aligned with me, there isn't enough to make any further progress, so we can resort to that if needed.

Board meeting is Tuesday.

What I have to avoid doing is telling them the first thing the zoning officer told me was about conflict of interest. Or how he seemed very frustrated. I need to keep it to, we need to follow rules or get them amended, we need objective interpretations, and we haven't budgeted for this.

Thank you for your reply. Sorry that you are getting frustrated. I'm just getting anxious about how the other board members are going to react.

Yes we do have an attorney. We chose him several years ago because of his experience with HOA law, and he was effective in our transition and negotiation with our builder. But he charges a lot $310/hr. I hate for the HOA to have to pay for this though since it affects so few people. Or do you think this it is worth it?

Thanks again for the advice. Sorry it is frustrating you.

I share Kerry's frustration.

The "footprint" issue is a sideshow unless the CC&Rs specifically cite it as the reason for the restriction. If they do not, then "footprint" is irrelevant.

As Kerry noted, CC&Rs form part of the contract on the home, which is why they have greater weight than a "rule" and why they're legally enforceable. CC&Rs are a big deal.

The board member making the request should be recused from *all discussions* and voting, other than an initial discussion in which she presents plans, drawings, measurements, materials, etc. (the same things any homeowner would include in any modification request).

If the board does choose to go forward, then it makes sense to poll the membership first to see if you'll have the necessary votes to pass the amendment. If your CC&Rs require 75% approval and about half the membership go "meh", then it makes no sense to go through the expense of hiring the lawyer to draft the amendment and paying to send copies of the amendment and voting materials to the membership. It costs about the same whether the amendment passes. fails, or dies in limbo - the only difference would be the final recording fee, if any. It would be really annoying to spend over $1000 (going rate for an amendment in my area) to appease someone who won't take no for an answer and be no further along when you're done.

Replying quick because I'm at work, but we are a townhouse. But individuals do own the land it is on, and a little in front and behinds.

The main reason no alternations, additions, etc. are permitted in our high rise condo CC&Rs is to protect the structural integrity of the building. Any nails, screws, certain beams, etc., etc., driven into our stucco exterior or steel railings is a potential source of water intrusion, which can threaten the common area or even intrude into our units.

This is why though we must permit dish satellites, they must mounted on a tripod and may not be attached anywhere to the balcony interior. Balcony floors & ceilings are prestressed concrete and nothing must be done to penetrate the surface.

Please show us, JohnC, in their declaration which phrase would or "might" permit any additions?

The way the land ownership works, as I understand, is that the owner owns the land going all the way up to the land of the house behind it. In the case of this homeowner/board member, her backyard backs up to the edge of the community fence. I am pretty sure she would own all of it. So no enroachment on another property. One aspect for the township involvement is due to a rule of a 20 foot easement requirement from them.

What a meeting. The homeowner/board member (female) did start yelling at me that she was sick of all the delays! Here's what happened at this teleconference. I apologize to those in advance who are frustrated if I bring up the same things, but I was worried this would happen and it did. My hands are still shaking from being screamed at like that and both the property manager and the 4th board member called me after to check if I was OK after she yelled like that.

The 2nd board member (male), who acknowledged he can't put stairs on the deck on his property said they met with the Township. He said the Township said there are no issues and that the zoning easment doesn't apply, and it is up to the HOA. This 2nd board member said he estimates 58 owners (rather than the 15 the Property Manager/MC and I calculated, out of 96) would be eligible by not being no stormwater land. He said it adds value to the homes. The Property Manager/MC pointed out that the CC&R doesn't allow it. After asking a few times, he said he'd try to get minutes of that meeting with the zone officer written up.

So then we got into the interpretation. This 2nd board member said he doesn't believe it affects the "footprint". THAT is why I started that last thread on "footprint" because this 2nd board member thinks it in his reasoning. I then brought up the other language that all of you on this message board brought up. He dismissed that saying we could go for days debating the interpretation of the language in the declaration (there is no other language, to the comment earlier in the declaration that addresses this). Later, the homeowner/board member pointed out I am not an attorney so can't interpret it. Later I'll point out that our property manager/MC thinks our board attorney is one of the best she's seen.

What 2nd board member and homeowner/board member proposed is going to their attorney. I mentioned I hadn't seen the qualifications as he previously said this attorney he wants to go to helped write the statute, and all I saw on the attorney's website is that he represented HOAs. The 2nd board member replied that made little difference, dismissing me again. I said it did make a difference to me and explained why. The 2nd bodard member said that if you are ever in the presence of this attorney you can just feel his knowledge. He said he was OK if we wanted go with our own board attorney. One of the things this 2nd board member also said is that the next board and the next property manager may decide the opposite, and then we'll look bad (the homeowner/board attorney and the 2nd member made it clear a few months ago they want to throw out our property manager/MC)

Then it came to going for legal advice. I said I wasn't ready because I didn't like not having background before the meeting. I needed time to think about it. That's when the homeowner/board member began aggressively asking me what my concerns were. I said this was all news, there was nothing in our packet beforehand about the Township meeting and I needed time to think. I kept repeating the same thing. The other reason, which I stated later, was I wanted to see a draft of the exact question we ask the attorney, to make sure it includes the right words and isn't slanted in their favoor, but I didn't say that right then. She started getting more aggressive pointing out that I had no legal training so why should we delay getting a legal opinion and other aggressiveness to my request to delay by one month (so we can all agree on the question) saying it was delaying timeline and we had talked about it for months. I brought up the township information was new but she said asking an attorney is unrelated to that.

The fourth board member spoke up saying she also wanted more time. The property manager then intervened and said what is the motion -- the 2nd member said it was to ask for legal advice on the steps. 2 passed, 2 rejected, so the motion failed. I said we can certainly discuss at the next meeting once we have the minutes of that meeting with the zone officer.

That’s when the homeowner/board member starting screaming at me. She screamed she was sick of this going on and on and plain sick of it. That's she's spent so much time on this. I can't remember what else since I was so shocked even though as I told you all, and told coworkers earlier today, I thought it would happen. Then it went silent. I can't remember who spoke next as I was so shocked. Something else came up and then I said I didn't want to discuss it anymore based on the change in tone at the meeting. The 2nd homeowner said he'd provide the minutes of the meeting with zone officer, and then we all should be ready to discuss at the next meeting. Then the homeowner/board member went on about there are no excuses for next meeting as she will have everything prepared and she expects us to be able to vote at the next meeting. And then she asked if there was anything else. Then I spoke up and said I'd like to see a draft circulated of the question to the attorney and she said she would draft that.

We closed the meeting shortly after that and then allowed the non-board member homeowners who observed the meeting to speak. The first said she also wants steps and also has been concerned about the delays and she'll do anything to support the homeowner/board member. She also said she's interested in the open board spot. The property manager spoke up and said it has gone on an on with discussions and petitions, but 2 months ago was the first time we had an architectural board request. The second homeowner non-board member observer also said he's interested in steps too. And then the meeting ended and we closed the call.

The property manager then called me to check if I was OK after that. She told me she thinks I'm one of the smartest people she knows (I have advanced degrees). She did say she also thinks our board attorney is really, really competent, being she manages 80 associations. She also thinks our township is good too. Then I spoke to the 4th board member who wanted to call me. She was particularly bothered by the yelling because she remembers when this homeowner/board member joined the board, and how I spent so much time and E-mails answering all her questions and providing the whole history of the transition that we did. She also didn't like how the 2nd board member said the next property manager, the next board, as a hint to something.

That's all I can write now given how much my hands are shaking. Thanks for all the advice and apologies again for those feeling like they had to answer the same questions. While I know the advice here was to seek legal advice, which I agree with, I just wasn't comfortable with how aggressive they were demanding it, and not having a specific question.

My hands are still shaking.

Ah, what a rough meeting, Arthur. Some of us also have been in hOA board meetings when one or more directors have been abusive bullies. It is upsetting. Get a good night's rest.

Other than Cathy, no one else posted after I shared what happened at the meeting, so sorry if I disappointed the group.

While I recognize it's about the Declaration, not the Township, as I said, the board member/homeowner and the 2nd board member dismissed my ability to interpret that. But what we did agree at the last meeting is at the next meeting, they needed to come with a draft letter to the attorney, and what the Township said. I also spoke to the 4th board member who told me she felt scared and unsafe to speak at the last meeting after that outburst, knowing she lives that close. She was also disappointed that a spectator homeowner voiced support, and that person has submitted a letter of intent for the 5th board seat.

I did place a call to the Township Zoning officer and let him know what happened. He called me back a few days later and said it's out of my hands - that he sent a letter on June 19, 2022 to the board member/homeowner (by E-mail and letter) stating that the original plan for the development approved years ago called for 20 foot easments. The only way to have it done would be for the HOA to propose changing that, and that would require a lot of studies that wouldn't make it worth it. He encouraged me to get a copy of the letter via the Right to Know law. I am thinking about it.

Meanwhile, our property manager/MC has now asked a couple time if they heard anything from the Township -- nothing. What bothers her is that they blindside us by bringing new information to the meetings without it being already in the packet. She also said if we don't get the information from them, she'll make sure it is NOT on the agenda. She says she's not afraid to the be the bad guy knowing that when they do get the majority, they may terminate her services.

In talking to neighbors, a lot of people are interested in this. So it makes sense at this point to ask our board attorney to review. And it is unlikely he'll be swayed by anyone else on this. I'd like the Township letter to be included when he reviews it, but let's see if we ever get it.

I'm also still very anxious about the next meeting. How does one have a code of conduct or conflict of interest discussion when you are not in the majority?

Arthur,

Your HOA rules do not allow for additional deck steps. Your declarations also seem to have an easement issue that it seems would place the steps within the easement (if that's a government regulation, it's one thing. If it's an HOA rule, it's another). Yes - for easement purposes, the steps count as footprint.

The board member, at her discretion can certainly launch a petition to change the rules so that deck steps could be added. Her demands do not require you to supply labor on her behalf. If enough dues payers want to sign a petition and subsequently appear in special session to change that rule, so be it. In that case, you'd know there is a demand for change and dues payers can change the rules.

The person is screaming because they don't have control. Follow your rules. It's that simple.

Sorry I didn't explain correctly.

The letter from the zoning officer was sent to the homeowner, who happens to be a board member. And who screamed at me when the vote failed last time (2-2) to approach the attorney because I didn't appreciate being blindsided by information. But that is why I need a right-to-know to see it. Also, since it may have been buried in my longer post a few weeks ago, at the last meeting, the 2nd board member claimed that when he and homeowner/board member met the Township staff, they had no problem with this, which is not what the zoning officer told me in the 3x I spoke to him.

I'm happy to pursue a vote to change the bylaws, but want to make sure everyone understands where the Township stands (=probability of success). 2nd board member says Township has no problem and he estimates 58 homeowners could do this - zoning officer says to me no-go, and PM and I believe only 20 homeowners could do this because of stormwater stuff on their property.

Our PM is actually in NY, but her belief is that anything that is being voted on should be in the packet.

We started open meetings at the end of 2020 because homeowners became upset with low communication from the board during our transition process. We weren't meeting much then much either. Now we meet once a month, agenda posted beforehand, open attendance, and homeowners can speak at the beginning and end of the meeting.

Really, really good point that we can't get a new board member with a 2-2 vote.

The Township responded to my request for the letter to the board member/homeowner within a day (and at no cost).

It's an E-mail from the zoning officer to her that says our community's property was subject to extensive litigation between the developer and the Township. I found articles about it from 2013. The plan approved as part of the settlement called for a 20 foot easement, and it also functions as an easement for the drainage. It looks it included some maps and highlighting from him, but I didn't get that. He then wrote that her proposed extension of the existing deck (earlier he said addition of stairs, so he's not confusing it) couldn't be permitted without first re-establishing the approved plan which includes redesigning the site's drainage plan and setback standards, and resubmitting to the Township with the intent of acceptance and re-recording it as an amended plan.

Because the CC&Rs specifically forbid it: *no* external modifications at all. They allow for *repairs* to decks as installed by the Declarant ("including, without limitation, layout, color and design").

Here is the text from the original post:

Notwithstanding anything to the contrary contained in this Declaration, no exterior addition to, or change or alteration (including, but not limited to any change or alteration of the exterior finish or color thereof) of any Unit shall deviate from the nature, kind, shape, height, materials, colors, dimensions or location as installed by the Declarant. No new decks are permitted. Existing decks (as installed by the Declarant, including, without limitation, layout, color and design) are permitted to be repaired as approved by the Executive Board. Repairs to any decks are confined to the footprint of the existing deck. Repairs to existing deck (as installed by the Declarant) shall be designed, constructed and maintained with open plank decking to permit stormwater runoff to pass directly to the soil-below. Concrete patios and roofs over decks are prohibited.

So a redesigned deck with a smaller footprint to accommodate steps is prohibited for two reasons: the original dimensions have been changed and the stairs are an addition. I don't think that is a "repair" subject to Executive Board approval - it's a modification which is prohibited in the first sentence (unless you argue that the first sentence only applies to the buildings themselves, but it doesn't say that).

I don't see that there is any room for compromise, although I think the quoted section is poorly worded and confusing. "Compromise" would have to be in the form of an amendment to the CC&Rs, or the board just ignoring the CC&Rs as they're written and doing what they think the CC&Rs should say. Which is why I suggested talking to the HOA attorney and getting his take on whether it makes sense to push on this.

I believe Cathy is correct and I expressed my opinion way above: The CC&Rs forbid it. cutting into a deck floor to make an opening big enough for stairs is forbidden. It is not a "repair." I' m a little confidence used why JohnC keeps bringing this up.

I'm speculating here, but if there was significant litigation between the developer and the township, that could be one reason for the hard nosed restriction on making exterior modifications.

If this is the case, it would make sense not to put modification decisions in the hands of boards or ARC committees that come and go, but instead spell things out in the CC&Rs. It would be too easy for boards and committee members to make mistakes that violate whatever legal agreements exist. Not now, because this is fresh in everybody's mind, but down the road after everybody has forgotten why things are done the way they are - yup, could happen. And the consequences of mistakes could be painful.

By the by, the portion of the CC&Rs quoted in the first post refers to an Executive Board. Is that the association board, or is it a different body? I assume there is a section of the CC&Rs that defines this.