Convincing board members!

Started by TyeG • 19 replies • 3139 views

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TyeG (Washington)
Posts: 22

Posted:

I am having some troubles getting my board to see eye to eye on some matters! We had a hearing of appeal and the board members voted in favor of a violator vs the complain-tent in regards to ATV's. I am wondering how do i convince my board that the rite to quiet enjoyment should trump a variance for ATV's in a PDD? Isn't it the responsibility of the board to uphold the covenants as they are stated.. I know it is an unpopular job but someone has to do it Right!! They are stating that we need to "humanize" the role of the board? Not sure what that means.. The covenants run with the land and are binding Right!!

Can anyone define what is the job of the board specifically.

BrianB (California)
Posts: 2,820

Posted:

the duties of the board should be spelled out in the charter or by-laws.
Typical duties of most boards:
Uphold the covenants, be responsible for monetary accounts, build a reserve, plan for disaster, enter contracts, negotiate, hold elections, follow the laws.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Tye,

Seldom is any issue black and white. It can often end up with each side presenting their "facts" that contradict each other, while citing different sections of the CC&Rs and state laws.

I have found it to be a good thing if the parties can come to a compromise. If everyone walks away from the negotiation feeling that they have won something, then there is a chance for peace going forward. If someone feels that their rights have been trampled, then there will be animosity to deal with for a long time.

There may be some middle ground here. Noise regulations often have decibel levels at certain distances and hours of enforcement. Maybe you can work with the rest of the board to set some explicit rules and policies that give the ATV riders some latitude for enjoying their vehicles within reason, and reserve other times for quiet.

TyeG (Washington)
Posts: 22

Posted:

This is a Black and White issue.. ATV's are not allowed within the plat period.. A compromise would mean ignoring my duties as a board member and violation contract law! Is it not the responsibility of the board of directors to protect the associations best interests.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Tye,

Can you cut and paste the relevant section from your CC&Rs?

Thanks.

TyeG (Washington)
Posts: 22

Posted:

No unlicensed motor vehicles, including motorcycles, dirt bikes, atv's etc, shall be permitted on any road within the play nor shall dirt bikes or atv's be permitted to operate on any owners lot.
(verbatum).

MelissaP1 (Alabama)
Posts: 13,836

Posted:

NO UNLICENSED shall be operated. What about those that are licensed and operated by licensed drivers? Are the streets public or private? Do you have a rule that includes sound restictions? Ours says that no contractor work can be started before 7 AM and must stop by Sundown. After 10 am there's to be a complete restriction on moise. Find out that part of your ruless in addition.

Former HOA President

TyeG (Washington)
Posts: 22

Posted:

what are the specifics of a boards role when it comes to ruling on a matter, should the boards loyalty be to the associations governing documents!

BradP (Kansas)
Posts: 2,640

Posted:

Tye

it really depends on your state laws...for example, in Kansas we have a duty to the corporation (HOA) to enforce our covenants except in certain cases where the covenant is unenforceable, cost to enforce is not worth the actual enforcement, the covenant is unreasonable. The rest comes down to what is in the best interests of the association, that is where a board member should always have their sights. As someone said no one issue is typically black and white.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

It appears the board majority supports a variance to the covenants that will allow for ATV use within your community. Therefore, the covenant restriction would be waived for such vehicles. This seems to have been done at an open HOA meeting with both sides presenting their view to the board. You simply lost this vote and the argument that ATVs are too noisy is a judgement call not shared by the board majority.

If there is common area being used for ATV usage, and the board approved waivers, then the HOA needs to update its liability insurance coverage since it's endorsing ATV usage in the community. I'm not sure if this is the case but it would, secondarily, smack every home owner in the wallet. That said, if most of the community uses A-T-V's and likes them, then this could likely be deemed a worthy expense and investment.

Noise arguments come across differently than a consideration that someone breaking their neck under HOA-waived behavior could be very expensive to settle.

MikeS1
Posts: 521

Posted:

You can't just enforce some rules and not others. The term "variance" should apply to municipal zoning laws, but you can't just say that we're giving the owner a "variance" or pass card on this. I would have a little heartburn if the vehicle was stored within the community, but if they just showed up to load and unload for a short period, I wouldn't have a problem with this. Even our local laws allow for 24-48hrs load/unload. Either change the bylaws or enforce them.

MikeS1
Posts: 521

Posted:

If they are unlicensed, they should no allow them.. for lots of good, obvious reasons.

TyeG (Washington)
Posts: 22

Posted:

The board members are making decisions based on emotions and not facts. How do you fix that!!

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Tye,

Welcome to the world of HOA politics and leadership! There's a reason there's a stereotype of the HOA that can't be shaken.

BradP (Kansas)
Posts: 2,640

Posted:

Tye...one avenue to look at, how does your local municipality fit into this equation? Do they have any jurisdiction, codes, laws, etc.?

TyeG (Washington)
Posts: 22

Posted:

Thank you.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Mike,

There are two concepts in play here. The first is "selective enforcement", where the rules are enforced only some of the time or against only some of the residents. You are right about this being a really bad idea (and probably illegal).

The second concept is that of a "waiver." The board can choose not to enforce some rules and restrictions based on changes in the law or enforceability of the measures. In this case the rule is rendered moot -- even if it is written into the Covenants.

In other words, the board must either enforce a rule consistently and universally, or have a solid reason not to enforce it at all. There is a good article on the subject on the web site of Orten Cavanagh Richmond & Holmes, LLC at Enforcement of Covenants Rules Architectural Standards and Guidelines. The article says in part that "The covenants, rules and guidelines should not overrule common sense and community values."

This ATV rule could be waived by the board if there is good reason that it should never be enforced.

MikeS1
Posts: 521

Posted:

Tye - I agree, but shouldn't they just amend their rules in writing, permanantly?

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MikeS1 on 12/29/2011 2:24 PM
shouldn't they just amend their rules in writing, permanantly?

Amending the governing documents is always best, so that there is no misunderstanding about what is and is not allowed. But amending documents is a long and costly process that may lag behind events. The Board can make an explicit determination not to enforce some one or other of the rules and restrictions and provide solid reasons why they are doing so, and this resolution has the same weight as any rule enacted by the board.

This cannot be used as a loophole to allow the board to shirk its responsibility. The board is subject to a recall by members, or in extreme cases a lawsuit, if it chooses not to enforce a rule without ample cause.

At a periodic review of the Covenants, any rules deemed unenforceable since the documents were last reviewed can be removed, and the new document filed with the court after following the amendment process.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Tye,

In one place you stated that, "This is a Black and White issue.. ATV's are not allowed within the plat period.."

But the passage you quoted does not state that at all. It bans driving an unlicensed vehicle on your roads and bans operating one (licensed or not) on the owner's property. That is not the same as banning them entirely. A licensed motorcycle or ATV is not banned from your streets.

You also said, "The board members are making decisions based on emotions and not facts." Uh, since your conclusions are not supported by the facts, could this also be what you are doing?

The board was presented with a complaint and decided not to take action. Unless your CC&R's impose a duty on the BOD to enforce the CC&R's (most do not) your BOD has the discretion to decide whether to take action on any complaint, assuming that there was an actual violation as opposed to an imaginary one. Most CC&R's allow individual members to bring a lawsuit on their own to enforce the CC&R's and this may be the course of action you will need to take.

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