Question regarding CCR, Bylaws and ARC of my HOA

Hi everyone,

I've been reading through the forums and have found lots of good information, some of which has raised questions I didn't know I had.

I was elected VP of our HOA in June and have been working with a bylaw committee again this year in an effort to clarify the statement in our ARC guidelines that states:

d. Swimming Pools
No above ground swimming pools are permitted.

Those blue temporary pools have caused great controversy in our neighborhood the past two years. In Feb. of this year, a ballot was sent out to homeowners to vote on bylaw changes, temp. pools included. Note enough votes were received to carry, so we're back to getting another ballot out this week. The ballot is proposing to change the words to allow temporary pools between May 1 and Sept 30, and states that the pools must adhere to county guidelines (permit required for any pool holding 24" of water).

My questions come from the following information.

1. The CCR does not mention pools at all. The bylaws do not mention pools either. The pools are only mentioned as stated above in the "Architectural Control Procedures, Guidelines and Standards". Actually the pool statement is the very last statement in that document.

2. The first statement of the ARC guidelines is this, "Whereas the by-laws of the HOA (name shortened), Article III and the declaration of the Covenants, Conditions and Restrictions establish an ARC composed of three or more persons appointed by the board of directors; and

Whereas, by Article III, #13, the ARC committee shall supervise and enforce architectural control of Meadowbrook homes and common areas.

3. Here is the Article III, #13 of the bylaws which is referenced in the ARC statement:

13. Executive and other committees

The board, by resolution, may designate from among its members an executive committee and other committees, each consisting of three or more directors. Each such committee shall serve at the pleasure of the board. The board may also appoint eligible homeowners to committees other than the executive committee as they see fit to run the affairs of the corporation and to serve at the pleasure of the board. Future needed positions within the corporation not necessarily requiring a committee may also be appointed by the board to help the affairs of the corporation and serve at the pleasure of the board. Terms of such committees or positions will be at the discretion of the board but not to exceed five years.

4. The CCR and bylaws do not mention the ARC at all.

In your opinion, right now, do you think that these pools should be allowed based on the CCR, bylaws and ARC. It seems to me that the "No above ground pools" should've been in the CCR along with all the other restrictions. The ARC guidelines were written in 2000 by the HOA board at that time. We're in WV in case that matters.

If the voting did not pass again because of a lack of votes (majority of homeowners said yes to temp pools in the last vote), but the majority say yes again, does the board have the power to allow the pools if we decide to? If the vote doesn't pass and the board leaves everything as is, it seems to me that a homeowner would win a legal battle this summer if it comes to that.

Thoughts? I'd be happy to scan and post the CCRs, bylaws and other documents if requested.

Thanks a lot!

Rick

Good question, Rick.

"In your opinion, right now, do you think that these pools should be allowed based on the CCR, bylaws and ARC. It seems to me that the "No above ground pools" should've been in the CCR along with all the other restrictions. The ARC guidelines were written in 2000 by the HOA board at that time. We're in WV in case that matters."

My best answer is no. It most associations the board of directors has the ability to implement reasonable rules and restrictions that are not specifically referenced in the covenants or bylaws. It appears that that is, indeed, precisely what was done.

Were I you, I would inspect the minutes of board meetings to determine if the specific rule was approved by a board vote. If not, then it can be contested as illegitimate.

Otherwise, the board is likely acting within its legitimate power to enact reasonable rules and restrictions.

In a more general sense, your situation epitomizes a need to have some sort of control over the rule making process, otherwise the board can do what it pleases. What seems to make sense is a provision that 5 percent of homeowners can demand that the board call a meeting to ratify or overturn a board enacted rule.

Thanks for the replies so far. Changing the CCRs will be a near impossible task since they are in effect for 25 years and a majority of homeowners would have to vote to change them....and we can't even get enough votes for "bylaw" changes.

Another question then as far as a contingency plan for the board. First of all, in general the board members do not care of the outcome of the voting, we just really want it to be put to rest by an official vote. That said, we need to be prepared for either, not enough votes being cast, or the 2/3rds vote No, and then the ARC wording is still unchanged.

That ambiguous (to many) wording, "Above ground pools are not permitted", is what is causing problems because the ARC guidelines were drafted in 2000 and these temporary pools didn't exist. The intent at that time (from what I've been told) was to not allow permanent above ground pools in the neighborhood, which nobody wants to allow.

So, if the ARC guidelines can be changed by a board of directors vote, we could change the wording to reflect that temp pools are allowed with guidelines we put forth? We just all do not want to have to pay an attorney to defend against a lawsuit from a disgruntled pool owner if this vote fails again and the wording remains the same. The majority of homeowners said yes to these pools, but not enough votes were received. So the board's decision to allow these pools would at least have the support of a large amount of the community that even cared enough about the issue to vote.

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Susan, I had just about finished typing this when I saw your reply. Thanks for your input. What do you think about my questions in this last paragraph above?

Thanks,

Rick

Our docs have language re "outdoor ornamental items..birdbaths, fountains, etc, etc. are not permitted without approval. Is there anything in your docs with similar language that could include above ground pools?