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Subject: Appeal of approved Architectural Modification
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KevinM16
(Maryland)

Posts:9


11/26/2019 6:21 AM  
Hi,
After a lengthy process, the architectural control committee approved the placing of my portable 110V hot tub on my covered porch. The Board of Directors actively participated in the approval process including dictating stipulations for approval. In addition, the chair of the covenants committee was the VP of the Board. The approval was delivered on Aug 4 2019. An appeal was filed on Aug 11. The board dissolved (quit) on Aug 21 and an interim board was elected on Aug 26. On Oct 23, a board was elected an took office. On Nov 7 the current board decided to hear the appeal and provided me notice on Nov 18 that the hearing was scheduled for Dec 3. I asked for copies of the appeals on Nov 19 so that I may prepare my case. To date, the board has not responded to the request. They have acknowledged receiving the request.

As you can see there is a lot more to this than typical. There is a 60 requirement for appeals to be heard and the hearing is scheduled for 115 days after the appeal was filed. We have a rule in the covenants that if the board is acting as the covenants committee the decision is final and there is no opportunity to appeal.

Two questions:
1) Because of the board involvement developing the approval letter and stipulations, did the board act as the covenants committee in this case? That would mean there would be no appeal allowed.
2) Is the appeal even allowed to be heard because of the time issue?
NpS
(Pennsylvania)

Posts:3910


11/26/2019 8:46 AM  
Hi Kevin
Would you mind providing a bit more info?

From what you wrote, it seems that there was some kind of uproar in your community over your hot tub approval. I'm wondering if you could share what other owners are saying.

As to your 2 questions, I think they could be argued either way.

Sikubali jukumu. Read all posts at your own risk.
KevinM16
(Maryland)

Posts:9


11/26/2019 9:47 AM  
Yes there was an uproar. The covenants prohibit above ground swimming pools and the board tried to classify my 6 ft diameter, 250 gal, 110 V plug in the wall hot tub as an above ground swimming pool. Their lawyer told them that the local jurisdiction does not consider hot tubs to be a swimming pool and that if I litigated they would probably lose. He also told them to put stipulations on the approval which the board did--nothing too outrageous. In my reading of the covenants there is no prohibition against nor requirement for me to have needed an approval for the HOA for my hot tub. The covenants address permanently installed structures. The hot tub is portable and is personal property and it isn't a structure. However, after I was able to get the covenants committee to agree that it wasn't a swimming pool, I was tricked into submitting an architectural change request for the hot tub. The chairman of the committee who was also the Vice President of the HOA asked that I submit the form so that they had the information on file.
NpS
(Pennsylvania)

Posts:3910


11/26/2019 10:10 AM  
Thanks for clarification.

I'm guessing that, since the resignation occurred 10 days after the appeal was filed, the old BOD resigned over the hot tub dispute. Do you think that's the case?

Did you talk with any of the old BOD members? Did any of them explain what happened from their perspective?

Sikubali jukumu. Read all posts at your own risk.
KevinM16
(Maryland)

Posts:9


11/26/2019 10:25 AM  
No, they resigned because the legitimacy of their election to the board was questioned because it didn't follow the procedure in state law or the bylaws. Most of my neighbors can't understand what the kerfuffle over the hot tub is all about. It's just that the previous board has it in their head that hot tubs are horrible things.
NpS
(Pennsylvania)

Posts:3910


11/26/2019 10:49 AM  
Usually, an appeal is from a homeowner who got turned down. So it's odd to me that there's an appeal from some undisclosed person.

The BOD certainly had the authority to overrule a decision of your CC. But that should have taken place before you got your notice of approval.

Maybe I'm splitting hairs, but "overruling" is not "appealing".

And if the BOD was involved in setting conditions for the approval, how can they now say that the prior decision is "overruled" or "appealed" or whatever. They set the conditions and those conditions were satisfied.

In your shoes, I would probably demand a copy of the "appeal." Certainly you know who it was that made the appeal.




Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3910


11/26/2019 10:51 AM  
CORRECTED:

Usually, an appeal is from a homeowner who got turned down. So it's odd to me that there's an appeal from some undisclosed person.

The BOD certainly had the authority to overrule a decision of your CC. But that should have taken place before you got your notice of approval.

Maybe I'm splitting hairs, but "overruling" is not "appealing".

And if the BOD was involved in setting conditions for the approval, how can they now say that the prior decision is "overruled" or "appealed" or whatever. They set the conditions and those conditions were satisfied.

In your shoes, I would probably demand a copy of the "appeal." Certainly you should know who it was that made the appeal.

Sikubali jukumu. Read all posts at your own risk.
KevinM16
(Maryland)

Posts:9


11/26/2019 11:03 AM  
Two residents are vehemently against hot tubs for some reason and appealed the approval. We are in an over 55 community so that might be part of the issue where they think we will be noisy and have hot tub parties. In contrast, we use the tub a couple times a week and it is quieter than our air conditioner when it's running.

I have demanded to have a copy of the appeals but crickets. The hearing is in one week. With Thanksgiving, today is really the last day where I could hope to gather information to prepare a response to the appeal.
NpS
(Pennsylvania)

Posts:3910


11/26/2019 11:49 AM  
Posted By KevinM16 on 11/26/2019 11:03 AM
... so that might be part of the issue ...


So, the BOD, the ACC, and the 2 complainers know what's in the "appeal." But you're supposed to guess what it says. Whatever happened to due process? How are you supposed to answer something that hasn't been provided to you? Are you supposed to prepare for something that's been disclosed to everyone involved but you? They owe you something better than that.

On your original questions:

1. You can try the "no appeals allowed argument" but is it likely to work for or against you? I think the better arguments are that you were unfairly denied "due process." But I don't know if you would fare any better with that one. I've been through these "you shouldn't have allowed this or that" wars many times. In my experience, technical arguments usually fail.

2. The "appeal is too late" argument has the same limitations.

Things you might do:

1. Demand that the HOA lawyer be present.

2. Demand that members of the CC who approved your hot tub be present.

3. Demand that old BOD members be present.

My thought is that you need others at the meeting who will support your position. You shouldn't be blindsided and find that it's you against the world.


Sikubali jukumu. Read all posts at your own risk.
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