Impact Fee for New Construction LEGAL?

Our HOA is in its infancy about one year old. I am the Secretary.

At the AGM one of the members proposed an Impact Fee and Damage Deposit for any new construction, it was voted into place.

The question has been raised by a builder member (who owns about 8% of the lots) who says that this is not legal, as it is not specifically stated in the Covenants.
Our Covenants do have a line stating that lot owners are responsible for any damage caused by them, guest, sub-contractors etc. But no means of enforcement is specified.

Any help would be appreciated as I can't find anything specific on this issue. At best it appears to be a grey area of the law (Georgia).

The rationale presented at the AGM, was that immediately before handing over to the HOA the developer had spent approx.$20,000 repairing the roads due to damage caused by 'builders'. That equated to about $1000 per house built. The Impact Fee proposed was $750 per lot payable at time of starting any new construction. The concept is that damage will occur and that it is very difficult to collect after the fact particularly when no one owns up to causing the damage.
The Impact Fee and Damage Deposit was correctly presented at the meeting and voted into place by a significant majority of the members present(quorum was well exceeded).
Thanks for any thoughts, we do not have any funds to seek paid legal advise this year.
Martyn

Legally speaking, it has been my experience (I am not a lawyer- so take this as lay advice) that you cannot collect a fee for damage that has not happened. You may be able to collect a security deposit of sorts- but only if you have the ability according to your Declaration.

Do your documents not provide for fines/enforcement of any violations? Damage should be covered as a violation by lot owner and usually treated the same regarding enforcement. If our fines are not paid for damage/violation after due process in our association, they are allowed to be filed as a property lien.

You do not mention if there was a quorum at your AGM- it is generally required when voting to change the recorded rules. I am not familiar with Georgia- but in Illinois our Declaration states we must have 2/3 of entire membership voting to change a rule. This is also mandated by the State law. Not so easy.

Also, in most states you have provide notice of the change to all members, and depending on how many units perhaps to all mortgage holders (banks), etc. if you change the Declaration.

My guess is if you have a disgruntled builder and you try to make him pay these fees, you may be facing legal action.

I have acutally successfully done this as a Builder Deposit with a Builder Agreement that is signed by the builder in question. Now if it is the declarant/developer you governing documents may preclude such an action. The deposit shoul dnot be so large as to be unreasonable and it should be held in "escrow" separate from other associatin funds and releasable at the time of compeltion of the home/lot. this may only work if the association is turned over from the declarant and as a part of architectural control procedures. If you would like a peak at the agreement we used let me know.