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Subject: Parking Restrictions Enforcement.
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RobertC37
(North Carolina)

Posts:7


08/08/2019 3:58 PM  
Greetings,

I hope I don't bore you with too much details. And I am not sure it is appropriate to ask this group about this matter. If this post is inappropriate, please accept my apologies and the moderators can remove this post.

But here's my situation. We got a letter from the Property Management on behalf of the HOA board of directors that warnings and fines would be imposed on those residents parking in the streets of the development. Such violates the CC&Rs. They site 'safety hazards' and 'nuisance' as the reasons in that letter.

First covering the covenants/declarations.

The Covenants (dated February, 1988) have a 2 specific articles.

Under Property Rights a section states "the right of the individual members to exclusive use of parking spaces as provided in this article." (Note no restrictions or guidelines on the use of such.)

Later in the same article is:

"Ownership of each lot shall entitle the owner or owners thereof to the use of not more than two automobile parking spaces, unless a greater number is required or permitted by Town Code at the time of initial development of which shall be as near and convenient to said lot as reasonably possible, together with the right of ingress and egress in and upon said parking areas and over private streets leading to and from such areas. The Association my regulate parking of boats, trailers and other such items in the Common Area. No boats or trailers or owners, members, or their guests shall be parked within the right of way of any public street in or adjacent to ."

Again, no restrictions or guidelines pertaining to the use of said parking spaces.

The covenants do define 'Architectural Control' and the ARC. Long story short: that article pertains to buildings landscape, changes, alterations, etc. Those would be expected. Nowhere in that section are vehicles of any kind addressed. Nor does the covenants grant the ARC control or rights over property use.

Now to cover the ARC document, the document they advise I would be violating if I park on the street.

The ARC Guidelines were revised and 'deemed ratified and effective as of August 1, 1996.' A section labeled 'Cars' has a single statement:

"Resident cars are not to be parked for any length of time in the street or front lawns."

For the record, the ARC guidelines also include restrictions on burning, spraying, dumping trash, and permanent parking of vehicles. To me these cover property use and are not ARC related purposes. As such they should be incorporated into the Covenants/Declarations. (Side Bar: ARC Guidelines restrict 'burning and growing of illegal substances.' Per this wording, is it ok for me to burn legal substances? Not trying to be flippant, just covering all the details. Burning of any kind is against town ordinances for the record. The ARC is redundant in this regard.)


Questions:

Do ARCs normally regulate cars, parking, and other property use items?
We have in the covenants a section
An article in the By-laws state that conflict in Articles of Incorporation, By-laws control. Conflict between By-Law and Declarations...Declaration shall control. Where to ARC Guidelines fall. By virtue that the ARC has approval control over the appearance, if that control conflicts with other documents, which controls?

The Declarations/Covenants do have a detailed process on how to change the Covenants. Such requires signatures of 3/4 of the current members.

It appears to me (my opinion) that the Board and ARC are trying to work around the process to change the Declarations by using (misusing?) the ARC guidelines.

Further, the wording of the ARC guideline on parking does not allow for normal and expected activities. For example, if I want to hose off my single lane driveway, or wash one of my cars, I would be in violation of the guidelines. I would have to park my cars off the driveway to accomplish those tasks. Likewise, my parents have physical limitations and require as little walking as possible. Therefore, they would park in my driveway and I would then have to violate the guideline and be subject to fines. 'For any length of time' is quite specific... as in, never. The restriction apply only to residents, But apparently not guests or contractors or any one else who wants to park on the street.)


I have been a resident here for 30 plus years and parked my car on the street until this recent (Aug 1 2019) letter restricting that activity. I have no explanation as to why after 30+ years (date of covenants) or 3 years (date of ARC change) the HOA/Property Management company decided to enforce this rule. They do site 'safety hazard' and 'nuisance to public services.' As an expert in 'safety hazards,' I know and teach that a hazard has to have potential to do property or personal damage. A parked car can not cause such damage. Relevant here because those are the reasons they site for enforcing the restriction. Nothing related to the architecture or landscape or appearance.

I am not asking for legal advise of any kind. I realize I will have to take legal action if I want to fight the issue. But I am trying to see if I am misinterpreting or have incorrect expectations of the current roles of HOAs and ARCs. Has anyone had similar experiences?

I thank you for your kindness in reading this epistle. I feel I am breaking some etiquette posting such as my first post and as a homeowner. I appreciate your indulgence and any insight you can provide.

Sincerely,
Robert
MelissaP1
(Alabama)

Posts:8396


08/08/2019 6:01 PM  
Let's say your car parked on the road is side swiped by a car and breaks off your mirror. Who do you blame? What if emergency vehicle can't get through because your car and a neighbors are too close together on separate sides?

I am not a fan of those who park on the street. Especially if they have a garage and parking space available. My neighborhood we have a group of people who do that. It's on a hill with limited sight. We have school buses and delivery trucks that have near misses. I avoid going that way because know that their cars are putting people in danger because they are parked on the street.

Former HOA President
RobertC37
(North Carolina)

Posts:7


08/09/2019 8:31 AM  
Thank you for your response, Melissa.

With regards to your first question: If my vehicle is legally parked per local ordinances, the driver who hit my car is liable and responsible. If it's 'hit and run', I have to manage the matter via my insurance company and local authorities. I make the decision and assume the risk of such damage whenever and where ever I park my car including parking garages and parking lots. BTW, if I am illegally parked, then I have a certain amount of liability for my actions and carry at least some of the fault for the incident.

To your second question, I have two parts and another facet.

First, the local protective services routinely drive their vehicles (fire trucks) through the neighborhoods. They do so as part of their training so that drivers become familiar with navigating the streets and understand the traffic situations they will encounter. If street parking prevents them from doing their job, the township has authority to define no parking zones or such to remedy the situation.

Second, the rule is applied only to residents. Anyone else can park on the public street and create condition you describe. So, that garage sale with 12 cars parked on the street, not an issue per the HOA rule. But if I park my car on the street so I can place my for sale objects on the driveway, I get fined. (Back to the expected and normal use of my property.)

I will add another facet. The HOA sites 'safety hazards' in their letter advising of the enforcement. With that statement the HOA has assumed some amount of responsibility and liability to enforce rules based on safety. The loophole here is that the they limit their 'control' to residents.

But, the HOA has not done an adequate job of defining the hazard, objectively stating the risk factors nor the level of safety actions/notifications for this particular situation. They need to also communicate all this information to the members.

So, if my (resident's) car parked on the street is deemed a safety hazard and property or personal damage occurs as a result, the HOA has a certain liability. They did not adequately enforce the rule and allowed the safety hazard to exist at some given time. It further complicates the matter when I ask why is my car considered a safety hazard and all other cars parking on the street aren't?

Based on other research, they should put up no parking signs. What will that do to marketability of my property when the signs read "No Parking - Residents of only"?

As an FYI, all those labels on your mower, hair dryer and around facilities have very specific language with regards to the terms 'Caution', 'Warning' or 'Danger'. These are the recognized terms and specific definitions when ever the words 'safety hazard' are applied.

Again, thank you for your response and input. While I understand your feelings about street parking, I am trying to keep this to the terms in the CC&Rs and the actions of the HOA in this matter.

RC

CathyA3
(Ohio)

Posts:338


08/09/2019 9:17 AM  
First, are your streets public or private, or a combination? It makes a difference in what the Association can or can't do. Also, do you have designated parking areas/parking pads for guests or others?

Parking is a problem in many communities:

* Streets are often narrow, which means the vehicles parked on the street make it difficult for others to maneuver or get into or out of driveways; in particular they can slow down emergency responders.

* On street parking obstructs views both for drivers and pedestrians; these are the safety issues that associations often cite. If your streets are private, then the HOA has a legal obligation to deal with and try to prevent potentially hazardous situations (think of children running out into the street from between parked cars).

* Finally, it's common for many households to have more cars than they have available parking spaces, or to use their garages as storage units and assume that they'll park on the common areas.

HOAs usually have a right to make reasonable rules and regulations governing use of common areas, including streets. I didn't see that language in the sections you quoted, but you should look through the full document to see if there is something that specifically gives the association that right.

The ARC guidelines state "Resident cars are not to be parked for any length of time in the street or front lawns" which says to me that the HOA does have the right to regulate use of common areas. Unfortunately I think this is too vague - what is "any length of time"?

In your position I would be asking the board questions since I'm not seeing anything that looks definitive. In your board's position, I would be looking to rework any rules that supplement the parking restriction in the CC&Rs because - based only on what I've seen here - I think they are too vague to enforce and are confusing for owners.

RobertC37
(North Carolina)

Posts:7


08/09/2019 2:43 PM  
Thank you for responding, Cathy.

To answer the question, all streets are public. No other accommodations for parking except the aforementioned Article. No specific pads or areas for guest parking. To take it to the next step, the covenants define common areas as property owned by the HOA. The HOA does not own the streets. Except for the one article, the word street (or any derivative such as road, avenues, etc.) does not show up anywhere in any of the documentation.

To your other comments:

* We are fortunate in that the width of the streets will accommodate three car widths. Admittedly, you better be at no more than the speed limit if you plan to thread that needle. But it can be done. The parking density is not bumper to bumper, length of the street. A car in front (or side street) of each house; usually the length of a lot between them. Most people seem intelligent enough to stagger cars they park to prevent creating bottle necks.

* With that said, I fully understand the issue of line of sight and children playing. I will not disagree cars do add to the hazard. I am more concerned with residents who drive above the posted 25 MPH speed limit. The issue there is law enforcement of the speed limit. There's not really much the HOA can do other than complain to the police as I have done on several occasions. But to what degree can an HOA force residents to act safely?

* You are on target with your third asterisked point. (Guilty as charged.) Most residents have no more than 3 cars and even then, most only park one car on the street.

Yes, an article gives authority to 'formulate, amend, and enforce reasonable rules and regulations concerning the use and enjoyment of the front yard space of each lot and the Common Areas.' Common Areas are defined as HOA owned property. I've covered the 'street' term above.

The ARC per the documentation controls the architecture and landscape aspects. Their function deals with (per the Guidelines) 'an effort to preserve property values, the natural beauty of the subdivision and to assist with the quality of life in ".

Parking of cars does not fall into that purview. A section of 'Cars' should not be in the guidelines. To go to absurdity, if this is allowed, what is to stop them from dictating the make, model and color of the cars I own? (This alludes to the language of the rules you point out.)

I go back to my initial premise. The rule conflicts with the specific right in the covenants to parking spaces with no restrictions defining who can use them. The covenant allows them to restrict "boats, trailers and other such such items." By restricting the parking of cars via another mechanism (such as the ARC0, they violate the terms and conditions of that covenant section. If there is an issue with parking, the covenants need to be amended per the prescribed method within the covenants.

With regards to communications, I am trying to get information on the ARC meeting. But, I really doubt they will be swayed. I can forget the Board. The Board has never entertained a special meeting.

Thank you again for your input.

RC
CathyA3
(Ohio)

Posts:338


08/09/2019 3:04 PM  
Based on what I've seen, it does appear that the ARC guidelines conflict with the restriction. When there is such a conflict, the restriction supersedes the guideline.

You may want to talk to some neighbors to see if anyone else feels that there is an issue with parking (and maybe traffic control in general since you mention speeding). I'm going to assume that you're not the only one who has received a notice about a fine. Many communities have CC&Rs that are out of date, and the parking restriction is one of those areas since more households have multiple vehicles and folks are driving SUVs or pickup trucks in place of sedans.

None of this will happen fast, but I can see the possibility that changes are needed.
ArtL1
(Florida)

Posts:140


08/09/2019 4:13 PM  
The important question, which has been answered, is "who owns the streets?" If HOA doesn't own them, I don't see how the HOA can adopt a new rule forbidding members from parking on them. Even if the HOA did own them, I think it would be questionable whether such a rule could be adopted by the board and not whatever majority of your HOA is required to amend your restrictions. Since the HOA doesn't own the streets, street parking rules would be whatever is imposed by the local government that does own them.
CathyA3
(Ohio)

Posts:338


08/10/2019 5:45 AM  
Posted By ArtL1 on 08/09/2019 4:13 PM
The important question, which has been answered, is "who owns the streets?" If HOA doesn't own them, I don't see how the HOA can adopt a new rule forbidding members from parking on them. Even if the HOA did own them, I think it would be questionable whether such a rule could be adopted by the board and not whatever majority of your HOA is required to amend your restrictions. Since the HOA doesn't own the streets, street parking rules would be whatever is imposed by the local government that does own them.




You're correct, I missed that. I suggest verifying what local laws say about it. Even if there are some restrictions, the HOA has no authority to enforce them unless there is some sort of legal agreement giving the HOA that right.
JohnC46
(South Carolina)

Posts:8550


08/10/2019 9:44 AM  
Posted By ArtL1 on 08/09/2019 4:13 PM
The important question, which has been answered, is "who owns the streets?" If HOA doesn't own them, I don't see how the HOA can adopt a new rule forbidding members from parking on them. Even if the HOA did own them, I think it would be questionable whether such a rule could be adopted by the board and not whatever majority of your HOA is required to amend your restrictions. Since the HOA doesn't own the streets, street parking rules would be whatever is imposed by the local government that does own them.




I agree. Our streets are public but our Covenants have street parking restrictions stronger than the local government so by signing the Covenants, one agrees to abide by our restrictions.
RobertC37
(North Carolina)

Posts:7


08/11/2019 4:34 PM  
Thank you for all your inputs and insight.

I get a sense that I am likely correct that the ARC guidelines can't supersede the covenants.

The letter was sent to all members. I have talked with a couple of other neighbors who agree with confusion over the sudden enforcement of this parking rule. Most were not aware of other restrictions also imposed by the ARC Guidelines.

Two neighbors claim they did not get any notification. One is not a computer, internet even email savvy. He would have had to bet a USPS delivery. I suspect the management company personnel re only using email to communicate. However, based on a head count from the management group, only 136 of 150+ members subscribe to the web site.

A couple of the neighbors have agreed to support my efforts if I seek legal advise so that any action would be on behalf of the members, not just one person's grousing. I will likely consult an attorney to review my next communication.

Ironically, this morning while walking my son's dog (we 'puppy sat' this weekend), I noted 3 cars parked on the same street where all of the board members live. While I do not know that these vehicles weren't guests, it points out the difficulty in enforcing the rule. I also saw that other neighbors on my section of the development also had parked cars on the street. I know these weren't guests.

Again, my sincere thanks for your thoughtful insight and information on this matter.

Regards,
Robert
JZ2
(Florida)

Posts:43


08/12/2019 10:17 AM  
Hi Robert,

Are you sure that the streets are publicly and not privately owned? The reason I inquire is that one of your Dec excerpts states:

//"Ownership of each lot shall entitle the owner or owners thereof to the use of not more than two automobile parking spaces, unless a greater number is required or permitted by Town Code at the time of initial development of which shall be as near and convenient to said lot as reasonably possible, together with the right of ingress and egress in and upon said parking areas and over PRIVATE streets leading to and from such areas.// (emphasis added)

I can't advise you re: NC law, but in Florida ARC guidelines do NOT supersede Dec provisions but are subordinate thereto. I presume that is the case in NC, but you would need to confirm that.

Good luck!
JohnC46
(South Carolina)

Posts:8550


08/12/2019 10:28 AM  
ARC guidelines do not mean squat. They override nothing. They can be changed by the BOD at anytime. On advice from our attorney, our ARC is our BOD.
RobertC37
(North Carolina)

Posts:7


08/12/2019 3:27 PM  
@ JZ2 I have verified with the town hall people, the subdivision streets are public. There are no listed private streets in the area. I do not know why that wording with regards to 'private streets.'

@ JohnC46: Thanks. I believe legal action is my next step. Or at least have an attorney write a letter on my (and others) behalf.

CjC


Posts:192


08/13/2019 9:22 AM  
What if you had 3-4 drivers in your house and 3-4 cars? Where are they expected to park?
JZ2
(Florida)

Posts:43


08/13/2019 11:16 AM  
You may want to consider saving your money for the time being and simply requesting that the Association provide you with legal authority for its belief that it can enforce a parking restriction on a public street.

If it can supply you with a statute or case law in support, then it may make sense to get an independent legal assessment of the situation. If it cannot, it may revisit its position and both sides will be spared unnecessary legal expenses.

The key here is to be humble and non-confrontational in your request. A personal meeting with the Board president would be the best way to go, IMO.
RobertC37
(North Carolina)

Posts:7


08/14/2019 2:22 PM  
Darn good question. Now we get into the matter of 'owner or owners' vs 'residents'.

My wife and I would have to park in the driveway, my 3 sons (to assume a situation) may be allowed to park on the streets.

As pointed out the wording is confusing.

All together, I think it these are all unenforceable.
RobertC37
(North Carolina)

Posts:7


08/14/2019 2:25 PM  
I can try to be humble. The BOD has already come across as confrontational per other neighbor. Also, they shield access to themselves via the management company which has always been confrontational. In the past they use the "bring it up at the annual meeting". The BOD shuns any communication from what I and my neighbors can determine.

Thanks for the input.
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