Need ACC Encroachment Advice, Please!

Townhome President needing ACC encroachment of common property advice and support. For approximately 30 years, the HOA hasn't had a good handle on ACC with regard to encroachments on common property, i.e. there are no applications to show request/approval of extensions and landscaping beds onto common grounds. Nonetheless, since elected for 2010, I feel I must uphold existing bylaws (current as of 2008) that state ACC forms must be filled out and approval from BOD for any exterior modifications and encroachments on common property.

Homeowner X (snowbirds) was advised (unknown to BOD) by groundsman that they could plant a few bushes in common area. They put more than what they said, plus stone beds, etc. After reprimanding the groundsman, I sent a professional and nice letter to the HO advising this was a unusual predicament, but we needed a form submitted after the fact. Advised why this was necessary in protecting interests of both HOA and HO. Received nothing, however, HO shows up a BOD meeting with neighbor, pulls chair up to BOD table and rants they should not be picked on for beautification and they declared they would be on the ACC. I was out of town at time, and the remaining BOD were so in shock.

A couple weeks later, now they have planted even more in several areas, put down more rock borders with gravel fill, and a few more bushes. Most of us admit it looks GREAT and better than the poorly growing grass before...but what action to take now? The ACC is proposing to have them pull it all up in 15 days and replant the grass or we will remove and charge them for labor. Unfortunately, we have only 4 BODs as one person moved away. I want to have a BOD unified position before next weeks meeting (sure HO and neighbor will show again to stir pot) but looks like we will be split. I HATE to make an example out of the HO, especially when prior to 2010 so many people have gotten away with landscaping that looks terrible now! But i'm trying to explain to the two directors that whatever decision we make now will set the precedence, and allowing this to stay would a) negate anyone having to fill out an ACC form in advance and b) allow others to continue encroaching and get further out of control. Plus, who is to do the caretaking when they are gone 6 months out of the year? And what if they move away and the next people aren't as yard savvy as they?

Please provide insight. This is a hard decision to nice people that have done beautiful things to the grounds, but I think allowing this would not be fair to others. Think i'm getting into a legal issue because of the past BODs not enforcing this (but still thought important enough to leave in 2008 amended bylaws)? I also welcome any creative solutions, if any!

Thank you for your time.

Oh, one more encroachment issue involved a homeowner extending a fence 8 feet onto the common area.

It took us 2 years to finally get the fence removed, and it was not until we carried through on our threat to file suit that it actually ended up being removed.

Total cost: $1,500, which the homeowner had to pay.

KM,

If you view these members as "nice people" then I'd hate to think what you view a "not nice" person. These members have blatantly violated the gov docs after being told what the rules are; took over a board meeting and made demands and have been uncooperative from the gitgo.

The board needs to stop being afraid of exercising their authority. If the actions of these snowbirds is in violation of the gov docs then they need to be sent a violation notice. If all the board wants is a request form to be submitted then make that requirement. However, if it were up to me, I would demand that the common area be put back to its original condition. If the board is concerned to start following the CCRs, now is the time to start. In the end, it all depends upon what precedence this board wants to set -- that of a board who is not afraid to enforce the docs or that of a board who can be bullyed into doing what the member wants and bedamned the gov doc.

BTW, anymore demands to be put on the A/C committee should be met with, "Thank you but there are no openings".

Thanks to everyone! All good perspectives validating my intent to enforce. (MaryA, I apologize - my claim the offenders were "nice" is certainly not a factor in the decision making process! All homeowners are equal.) Among ACC recommendation, and the BOD -- who per bylaws are the only ones that can approve common grounds encroachment -- the two choices come to a) immediately ordering return to orginal condition or b) asking for form to be submitted in x days and allowing the established ACC/BOD review to take place or else we remove at homeowner expense.

I asked a few, HAD the HO went through the approval process, are there PARTS of the landscaping that they would have voted as approved? Should that even matter, though? With that thought in mind, I'm wondering in what situations other HOAs have APPROVED encroachments/landscaping? My rationale is, if there are NO plantings or encroachments allowed, why do governing documents (in my experience in FL and TX) allow the BOD discretion? If the idea is to not allow any plantings or encroachments, the docs would just say that. In your experience what kind of encroachments/landscaping would be approved or why is this loophole allowed in the docs?

I do support thoughts on clearly defined enforcements. Seems best to allow NO one to do any encroachments/landscaping, because anything otherwise seems too subjective to support my case in front of the judge if a HO decides to push the envelope!

I'm referring to the ACC bylaws which state "[ACC] Forward to the BOD any owner or resident requests for exterior modifications that are considered to be inconsistent with the overall architectural plan and design or that involve a possible encroachment of common property. These requests must be forwarded in sufficient time for the BOD to render a decision within 30 days of the original or resident request."

Perhaps my interpretation is incorrect. Seems the way it's written leaves it open for the BOD to pick and choose what they approve, since there is no other reference in the governing documents that state "no encroachments" period. Hard to tell if that is what the intent of previous BODs wanted, as they haven't enforced this landscaping thing for many years, but the problem it's presented makes me think now is the time to say enough is enough.

Personally, i'd want to move into/live in an HOA that had a strict policy of no encroachments. That way, as a HO I wouldn't be at the whim of a BODs subjective aesthetic or otherwise decisions affecting my property. I'm agreeing the landscaping should be returned to original, but appears I may be in the minority when it comes to BOD vote.

Sounds good.

In cases where the HOA removes landscaping from common grounds, what is typically done with the materials? Leave on the HO property? Dispose of? One ACC member suggested transplanting some of the bushes to other common grounds (existing landscaping), but i'm thinking that would really escalate things further!

Sorry for all the questions, I've just never been in this situation before so want to be ready for the worst-case-scenario!