ARC Violation Appeal Meeting

Started by JoelM1 • 11 replies • 2369 views

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JoelM1 (Pennsylvania)
Posts: 61

Posted:

I am trying to determine from our by-laws if there is any reason that the meeting for a homeowner to appeal an ARC violation cannot be at the same time as our regularly scheduled monthly board meeting - by simply adding it to the agenda. One of our board members is saying that an appeal meeting needs to be separate. He did not provide the part of the by-laws that he is deriving this from. I do not see anything in the by-laws that indicate this.

Obviously I should be pasting the wording of our by-laws into this post, but I do not have the by-laws in a format that I can copy and paste at my currenty location. When I get back home tonight, I can add to this posting. I am just wondering if anyone has some initial thoughts, or if you may have an idea if it is common for the appeal meeting to be held at the time of the monthly meeting.

Thanks.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Joel,

We will need to see the process according to your ARC documents and then the CC&Rs which should outline how your appeals works before we give our opinions. In my HOA, any ARC decisions are made within that committee, therefore NOT at a Board meeting. If the applicant or violator will not accept the ARC committee judgement, then the homeowner may appeal their case before the Board. That is NOT done at a Board meeting as this is usually a fining situation or a decision to go to a legal opinion, neither one of those are open Board meeting acts.

JoelM1 (Pennsylvania)
Posts: 61

Posted:

Our board has no ARC committee (just a single ARC chairperson). Our CCR's list the formation of an ARC committee to be optional (though something I wish we had). Therefore there is no real opportunity to appeal to the ARC committee itself.

This is what our CCR's say about the appeal meeting:

Appeal of the Notice of Violation

If the owner and/or violator wishes to "Appeal" the Notice of Violation, that choice should be noted on the written Notice and returned, before the specified date, to the Board of Directors so that the Appeal Meeting can be held on the date in the Notice. This meeting will be held in executive session with the Board of Directors.

The next sessions explain that a vote will take place after by the directors present and a decision made within 5 days. I think what I included is the relevant section to my question.

I am not really sure what in that by-law prevents the appeal from taking place at the monthly meeting of the board of directors. It states that the meeting should be held in executive session, but there is nothing that prevents a portion of the monthly meeting from entering into executive session for the part dealing with the appeal. Even at that, being that we are in Maryland, I believe the Maryland HOA act would prevent that portion from going to executive session (unless there will be something discussed that qualifies as a reason for closed session).

Thoughts?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Joel,

The statement "This meeting will be held in executive session with the Board of Directors." is in your bylaws and specifically states "Executive Session". Legal matters are not discussion for a general Board meeting and I see no wiggle room with what I see. One reason could be if there can be no agreement worked out between the Board and the violator, things could turn into a proceeding towards litigation and that is not open Board meeting business.

JoelM1 (Pennsylvania)
Posts: 61

Posted:

Quote:

Posted By DonnaS on 09/08/2010 12:57 PM

Joel,

The statement "This meeting will be held in executive session with the Board of Directors." is in your bylaws and specifically states "Executive Session". Legal matters are not discussion for a general Board meeting and I see no wiggle room with what I see. One reason could be if there can be no agreement worked out between the Board and the violator, things could turn into a proceeding towards litigation and that is not open Board meeting business.

Donna - Thanks for your reply.

I did not really know that legal matters should not be discussed at general board meetings. Legal matters tend to be regular agenda items at our monthly meetings. Also, I think state law (MD HOA act) would prevent a typical appeal meeting from being in executive session - though I may not understand exactly what executive session means. Is executive session a closed meeting which is not open to all association members?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Joel,

Yes, Executive meetings are generally meetings where legal issues are discussed. Some other reasons are personnel and medical information matters as well. These meetings are not shared or open to the general membership.

Legal matter in some cases are open to the membership such as "we have reached a standstill in trying to get resolution on (Joe Blow), therefore the Board wishes to procede with litigation against said homeowner." That's just a general example but once the attorney is involved, all discussions and decisions are done in Executive session.

Some will jump in here and state that there is a Sunshine Law in their State which requires open meetings. Those laws pertain to State, County, City and Municipal type meetings. Generally those laws do not pertain to HOA's who will have their own seperate Statutes and Laws

JoelM1 (Pennsylvania)
Posts: 61

Posted:

Quote:

Posted By DonnaS on 09/08/2010 1:55 PM

Joel,

Yes, Executive meetings are generally meetings where legal issues are discussed. Some other reasons are personnel and medical information matters as well. These meetings are not shared or open to the general membership.

Legal matter in some cases are open to the membership such as "we have reached a standstill in trying to get resolution on (Joe Blow), therefore the Board wishes to procede with litigation against said homeowner." That's just a general example but once the attorney is involved, all discussions and decisions are done in Executive session.

Some will jump in here and state that there is a Sunshine Law in their State which requires open meetings. Those laws pertain to State, County, City and Municipal type meetings. Generally those laws do not pertain to HOA's who will have their own seperate Statutes and Laws

Donna - thanks for the info on this.

So say a homeowner gets a violation notice that says they stained their deck the wrong color (done without an ARC form) and if it is not fixed in XX Days, you will be fined $NN / day. They are told that they can appeal this ruling with a meeting of the board of directors on dd/mm/yy at 7:00 PM.

Is there something in the by-law that I included that legally excludes the possibility of "dd/mm/yy at 7:00 PM" also being at the same time as the regularly scheduled board meeting? Seems to me that simply entering executive session to hear the homeowner's appeal and then carrying on with the rest of the meeting is not in contradiction of the by-law. I understand that it may not be common practice to discuss such issues at a regular board meeting but for a small community like ours, that only has one meeting per month, and maybe 1 or 2 appeals per year, seems to me to be acceptable.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Joel,

So the deck is the wrong color The ARC application was never applied for. Now they are going to fine. What is there to appeal? If I were the violator, I would want to be in Ex session. If I were a Board member, more is accomplished in meeting directly with a violation rather than all of the H.O's hearing

BrianB (California)
Posts: 2,820

Posted:

Joel, IANAL, but you should be able to do what you are thinking ("combining meetings") as long as you are clear on the meetings beginnings, endings, and proper procedures. I would recommend holding the regular board meeting, doing all normal business, closing the meeting (perhaps with a motion to close and go into executive session), and then starting the executive meeting with a clear deliniation, if possible. Logistically, it should work. You must make sure that you don't get hanger-arounders and lookie-loos who want to be part of the closed session that don't have a vested interest in the proceedings.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Joel,

Not knowing whether you live in a condo or a planned community, I've posted below both statutes referencing what actions can be discussed in a closed meeting. In reading these statuts over I don't see that a member's appeal can be discussed in a closed session. Even though that is what your gov docs state, the BOD must abide by the state law.

Even is you did have an ARC committee, it would not be unusual for appeals to be heard by the BOD. This is the procedure for my HOA and I know it is handled this way in many assns. If our board has an appeal to hear it is heard during the open portion of the board meeting. There is no reason to schedule a separate meeting to hear the appeal. In fact if the board chose to do this they would have to notice the meeting because I believe MD requires all meetings to be open to the members. Therefore the best way to handle the appeal is to schedule it during the open portion of the board meeting.

From the MD Condo Act
§ 11-109.1. Closed meetings of board of directors.
(a) Permitted for certain enumerated purposes.- A meeting of the board of directors may be held in closed session only for the following purposes:
(1) Discussion of matters pertaining to employees and personnel;
(2) Protection of the privacy or reputation of individuals in matters not related to the council of unit owners' business;
(3) Consultation with legal counsel on legal matters;
(4) Consultation with staff personnel, consultants, attorneys, board members, or other persons in connection with pending or potential litigation or other legal matters;
(5) Investigative proceedings concerning possible or actual criminal misconduct;
(6) Complying with a specific constitutional, statutory, or judicially imposed requirement protecting particular proceedings or matters from public disclosure; or
(7) Discussion of individual owner assessment accounts.
(b) Scope of permissible action limited; inclusion of certain statements, records, and authority required in minutes.- If a meeting is held in closed session under subsection (a) of this section:
(1) An action may not be taken and a matter may not be discussed if it is not permitted by subsection (a) of this section; and
(2) A statement of the time, place, and purpose of any closed meeting, the record of the vote of each board member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next meeting of the board of directors.

From the MD Homeowners Association Act:
11B-111(4) A meeting of the board of directors or other governing body of the
homeowners association or a committee of the homeowners association may be held in
closed session only for the following purposes:
(i) Discussion of matters pertaining to employees and personnel;
(ii) Protection of the privacy or reputation of individuals in matters not related to
the homeowners association’s business;
(iii) Consultation with legal counsel on legal matters;
(iv) Consultation with staff personnel, consultants, attorneys, board members, or
other persons in connection with pending or potential litigation or other legal matters;
(v) Investigative proceedings concerning possible or actual criminal misconduct;
(vi) Consideration of the terms or conditions of a business transaction in the
negotiation stage if the disclosure could adversely affect the economic interests of the
homeowners association;
(vii) Compliance with a specific constitutional, statutory, or judicially imposed
requirement protecting particular proceedings or matters from public disclosure;
(viii) On an individually recorded affirmative vote of two-thirds of the board or
committee members present, some other exceptional reason so compelling as to override
the general public policy in favor of open meetings; or
(ix) Discussion of individual owner assessment accounts; and
(5) If a meeting is held in closed session under paragraph (4) of this section:
(i) An action may not be taken and a matter may not be discussed if it is not
permitted by paragraph (4) of this section; and
(ii) A statement of the time, place, and purpose of a closed meeting, the record of
the vote of each board or committee member by which the meeting was closed, and the
authority under this section for closing a meeting shall be included in the minutes of the
next meeting of the board of directors or the committee of the homeowners association

TerryJ1 (Maryland)
Posts: 42

Posted:

Quote:

Posted By DonnaS on 09/08/2010 3:01 PM

Joel,

So the deck is the wrong color The ARC application was never applied for. Now they are going to fine. What is there to appeal? If I were the violator, I would want to be in Ex session. If I were a Board member, more is accomplished in meeting directly with a violation rather than all of the H.O's hearing

There really is nothing to appeal - it is a waste of time for the homeowner, but they must be given the opportunity.

TerryJ1 (Maryland)
Posts: 42

Posted:

Quote:

Posted By MaryA1 on 09/08/2010 3:30 PM
Joel,

Not knowing whether you live in a condo or a planned community, I've posted below both statutes referencing what actions can be discussed in a closed meeting. In reading these statuts over I don't see that a member's appeal can be discussed in a closed session. Even though that is what your gov docs state, the BOD must abide by the state law.

Even is you did have an ARC committee, it would not be unusual for appeals to be heard by the BOD. This is the procedure for my HOA and I know it is handled this way in many assns. If our board has an appeal to hear it is heard during the open portion of the board meeting. There is no reason to schedule a separate meeting to hear the appeal. In fact if the board chose to do this they would have to notice the meeting because I believe MD requires all meetings to be open to the members. Therefore the best way to handle the appeal is to schedule it during the open portion of the board meeting.

From the MD Condo Act
§ 11-109.1. Closed meetings of board of directors.
(a) Permitted for certain enumerated purposes.- A meeting of the board of directors may be held in closed session only for the following purposes:
(1) Discussion of matters pertaining to employees and personnel;
(2) Protection of the privacy or reputation of individuals in matters not related to the council of unit owners' business;
(3) Consultation with legal counsel on legal matters;
(4) Consultation with staff personnel, consultants, attorneys, board members, or other persons in connection with pending or potential litigation or other legal matters;
(5) Investigative proceedings concerning possible or actual criminal misconduct;
(6) Complying with a specific constitutional, statutory, or judicially imposed requirement protecting particular proceedings or matters from public disclosure; or
(7) Discussion of individual owner assessment accounts.
(b) Scope of permissible action limited; inclusion of certain statements, records, and authority required in minutes.- If a meeting is held in closed session under subsection (a) of this section:
(1) An action may not be taken and a matter may not be discussed if it is not permitted by subsection (a) of this section; and
(2) A statement of the time, place, and purpose of any closed meeting, the record of the vote of each board member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next meeting of the board of directors.

From the MD Homeowners Association Act:
11B-111(4) A meeting of the board of directors or other governing body of the
homeowners association or a committee of the homeowners association may be held in
closed session only for the following purposes:
(i) Discussion of matters pertaining to employees and personnel;
(ii) Protection of the privacy or reputation of individuals in matters not related to
the homeowners association’s business;
(iii) Consultation with legal counsel on legal matters;
(iv) Consultation with staff personnel, consultants, attorneys, board members, or
other persons in connection with pending or potential litigation or other legal matters;
(v) Investigative proceedings concerning possible or actual criminal misconduct;
(vi) Consideration of the terms or conditions of a business transaction in the
negotiation stage if the disclosure could adversely affect the economic interests of the
homeowners association;
(vii) Compliance with a specific constitutional, statutory, or judicially imposed
requirement protecting particular proceedings or matters from public disclosure;
(viii) On an individually recorded affirmative vote of two-thirds of the board or
committee members present, some other exceptional reason so compelling as to override
the general public policy in favor of open meetings; or
(ix) Discussion of individual owner assessment accounts; and
(5) If a meeting is held in closed session under paragraph (4) of this section:
(i) An action may not be taken and a matter may not be discussed if it is not
permitted by paragraph (4) of this section; and
(ii) A statement of the time, place, and purpose of a closed meeting, the record of
the vote of each board or committee member by which the meeting was closed, and the
authority under this section for closing a meeting shall be included in the minutes of the
next meeting of the board of directors or the committee of the homeowners association

Mary - I agree with you 100%. I think despite the wording of "executive session" in the by-laws it is trumped by MD HOA act's criteria for when a meeting can be closed. Also the by-laws state clearly that the appeal is to be in front of the board of directors, not the ARC committee.

Thanks all for your input.

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