Selective Inforcement of Rules?

If your Board is authorized (has the power) to grant exceptions to the CCRs, then that's what SHE got and YOUR petition is not enough of a special circumstance.

While it may seem as unequal, the Board may think that ALL units facing the sun may approach them for the same variance.

I respectfully beg to differ on your assessment that the board cannot "waive" certain requirements.

They should at a minimum, to protect themselves and the resident, put all approvals, denials, and/or waivers in writing.

However, having the ability to "approve" or "disapprove" something, very often allows for the entity to "waive" certain conditions, say, of materials, for example, if deemed appropriate in the case at hand.

The ability to "waive" certain things are not expressly written into our CC&Rs, but neither are they expressly denied to us, either.

So, for example, our outbuilding guidelines specify that the outbuilding has to be placed within a certain number of feet from the main building. If the applicant's lot size and/or shape does not allow for that, a reasonable, and fair, Arch Committee could "waive" that requirement and establish a placement on the lot that is appropriate for the particular applicant.

But the board must be careful not to "waive" indiscriminately or arbitrarily, either, or they could risk diluting their standards.

Even so, lots of CC&Rs also have a provision such as this to allow for some discretion on the part of the board:

"Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."

I still agree, however, that they should put the "waiver" or "approval" of the bamboo fence IN WRITING.

NicoleO4: You mentioned in another thread that you are on the Board. Can you explain further what is going on here? You want to sue the HOA of which you are Board member? Please expand on your role in the HOA and your working relationship with the current Board.

Hi Donna,
My conversation with my board was such that when the infraction of the uanpproved fencing was brought up and they denied a correction letter it opened up the subject for discussion in our executive session.

We have wrought iron bars on our balconies. This allow an open area of about 10 inches from bar to bar. We had at a certain time misc hodge podge stuff like plastic lattice, chicken wire, bamboo fencing. In 2004 we had a homeowner who went over board and enclosed her balcony and lots of complaints from others we decided as a community to allow fine mesh wire to be allowed on balconies for safey issues ( pets and kids could fit through if small enough) It was passed, put into our rules ( myself and another board member who still serve ok'd this ) and made it the rule and regs that this was the ONLY approved fencing to be allowed to provide uniformity ect. and it it clearly outlined in our docs.

Saying that the fact the the board knowingly admits that the unit with the bad unapproved fencing is present. There are no minutes or written approval for this, but they will NOT enforce the rules in place WHen questioned as to why one board member stated they always allowed this kind of partitian or fence for privacy issues. There are NO minutes or written approval for this. When I asked if I can have board approval for the same as I also face an apartment building ect they said NO, made the comment that I have a vedetta against the homeonwer and that they will not approve my request.

So I have asked that my request be put in our minutes and I am currently having my own personal atty review our rules, regs and cc&r's as he is submitting a letter to our board requesting that I be allowed to erect the same exact fence..... that is all. For my own privacy I would like the same approval granted to my own balcony. The fact is there are no documents supporting thier idea of an approved exception. Nowhere. SO I am seeking to get the ball in motion and either get my fence approved the proper way...

Often in Docs it is stated that any member of the HOA has the right to enforce the Covenants & Restrictions. It sounds like she is directly in violation. Give her something in writing that gives a time frame for removal. She may comply, and you can be done with it. Or...
What we do is send the ARC request form and ask that the homeowner follow the proper procedure. It sounds like the Board plans to approve the improvement. If they do, in writing, it will be more trouble for you than it is worth to fight it.

From your description:

"the homeowner's unit faces a hotel.. and they claim it gives her privacy... and the board majority does not want to cite this woman on this issue despite it being clearly against the rules... and they know this. They feel that this should be "an exception"."

it sounds like this person DOES have a special circumstances. The Board's fault is not having this entire thing in writing in the minutes - to protect itself from charges just like the one you are considering! As it is now, it seems like preferential service to one unit, and denial to another.

1) the Board needs to officially grant a variance to this person, based on this very special configuration of the porch facing the hotel.

2) then you can submit your request and the cards will fall where they may. BUT - unless you have an EQUAL exceptional circumstance, don't bet on getting approval.

3) Sounds like your CCRs need updating AND the badly designed (and probably non compliant porch rails) need to be brought up to code.

Susan:

She stated earlier that her unit faces apartments, wouldn't she then also qualify for this "special exemption?" I think it bogus the board approved this and then denied yours. They set a precedent by considering privacy, now they should deal with it appropriately.

Tony.. don't think that height or variances have anything to do with this. Honestly the neighboring apartaments are even closer the the mentioned hotel to the other woman.

I am seeking legal counsel on presenting my case. The denial of my original request and the fact that they approved this lady will be in our minutes. Our board on a whole was not present last night. We had quarum with 3 members and therefore the others did not vote. I however will be presenting my request for approval with my atty in a letter form. He has our rules, regs and CCrs and bylaws.. and nothing has been approved in minutes..

Our board will either have to approve mine request or have this lady remove hers. My atty is very very interested in pursuing this as the two board members who did not ok this offered the rational that they always allowed these things but not officially.. ... that quote is in our minutes..

)

Hello Ellen,

Legal action was not that of me creating a suit towards the HOA but rather use my atty as a tool to creat some communication and a valid request for my fence in question. I need to let you know that the vote on this is literally 50/50 due to one board member's unit hitting forclosure this last week we have an EVEN number of votes. Upon review of all documents including a huge pile of meeting minutes... we can't go back 20+ years due to missing records.... there is nothing at all that allows this "exception" and my atty and his staff all stated a hefty "no" when asked if what she has up is found documented anywhere.... the only information that we have of anything being ok'd is the 20+ year homeowner board member who states" we always allowed this on that side of the building.. she is just the first to do this in many years. " Thats fine but no documentation supports this. My request is to have the same and I am pursuing this as I see fitt.

The situation as reviewed by atty ( not for suing, but for letter writing and to be well versed on my request) for a request for the same consideration of the bamboo fence.

We also today got an email from our President who could not make a motion on this obvously but as it reads.

After reading Davis-Sterling 1345(a) ( I hope) is there an agreement to enforce our governing documents? I can say if they are not enforced as currently written with current violations noted, you must remember that any homeowner may take Court or Alternative Dispute Resolution action against the HOA for not enforcing the governing documents. I.E. A homeowner can commence legal action for the Board not enforcing this current rule.
A homeowner can also commence legal action against a homeowner to enforce CC&R's only.
Either way, we appear to be in a situation where we have a current violation and should be wary of not taking action.

She is well aware of what I am doing and supports my attempt at receiving true non partiality when it comes to rule enforcement. As minor as this sounds to many, it frankly scares me a bit that our last years board ignored the flower plants that are also clearly a infraction on one of the units cited this month. "He use to also be a board member and he is the one in foreclosure.. ) His plants hang on the wrought iron fence.. and our rules in the little hand book we are sent out each year clearly staten. '"Nothing shall be hung or drapped over wrought iron fences on any and all balconies... his plants have hooks and hang our and on the outside "

I do not believe that these over sights are "accidents"....

Got them to enforce rules universally? I hope so.

No, you played "gotchya"!

How dare someone have flowers drape over a wrought iron fence.

Good sleuthing. Now hold their feet to the fire!

Yup yup. Time to crack down on those blatant renegade flower hangers.

I truly hope they're running scared now.

Roger thank you for your response.

Back to what I have been saying all along. No, this "fence" was never approved. It's been up for about a year now, and there are no previous, current meeting minutes that refelct any approval anywhere. The gal that has the fence has told me in the past that her freind the old president told her it was ok to put this up. Nobody will say anything... that sir makes me think that this also was put up withouth the appropriate trail that one must do in order to have proper approval. There are currently 10 other homeowners throughout the property who wish to do the same with a fence as well. I am just the first one to officially ask, be turend down and I will be following through. Our building is not being having the simple rules we jhave being inforced universally. I have some outside support on the pursuing of this item. I am definatly not alone.

I also don't think that mean or sarcastic remarks in regards to my situation makes me feel very comfortable in this forum especially when it's coming from a supposed atty. ( Not you Roger )

Not embarrassing at all.

You are the one playing "gotchya" in order to bolster your position of alleged "selective enforcement."

I defy anyone anywhere, by the way, to locate any post on any forum I post on where I have implied, much less stated, in any way, shape or form that I am or was or am hoping to be an attorney.

You want to get a fence put up. One that may not pass muster. You want to put the screws in tighter to press your position.

So you are doing what many residents do when they want to get their way, if the documents don't grant them their way automatically: attempt to play "gotchya" for alleged "selective enforcement" on the board members or former board members.

In some cases, there is validity to that action, and if the board has been lax and selective, then by all means call them out on it, in the appropriate venue and with the appropriate authority and documentation.

I'm a stalwart believer that boards should to the very best of their ability enforce fairly and across the board.

Your case against inconsistent enforcement of fencing is a strong one and is a great place to start and will require a lot of homework and legwork in and of itself.

If, however, your case of a pattern of inconsistent, preferential or prejudicial enforcement rests on a former board member who has vegetation draping his wrought iron fence, I'm afraid a judge would find your position somewhat weak.

Seriously. You don't need to be embarrassed about it. Just focus on the more blatant, egregious, and flagrant patterns of enforcement abuse and your case would be immeasurably stronger.

Yes, all violations are the same, in the long run, but a judge is more likely to consider your position when the pattern of abuse of enforcement is something a bit more problematic than flowers draping a wrought iron fence.

This building was built in 1980. Not too sure if that goes back far enough that this was an "oversight"