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Subject: Fireworks
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Author Messages
JesseB1
(Georgia)

Posts:2


10/02/2017 11:22 AM  
The rules of our community state there shall be no fireworks of any kind set off in the neighborhood. This past 4th of July our management company provided approval for fireworks to be done in the pool area of the neighborhood. I posed the question to her citing the rule and article number in the bylaws of the neighborhood and I was told that the county and state laws override those of the community. Is this correct as the bylaws clearly state there shall be no fireworks?
FredS7
(Arizona)

Posts:919


10/02/2017 11:47 AM  
> the county and state laws override those of the community.

This is almost certainly nonsense.

Rarely a county or state law may be written with specific language overriding other regulations. Look for text containing words like "notwithstanding."

Where I live it's the state and county laws that would not allow fireworks. Not to mention the "peaceful enjoyment" text in CC&Rs.
MarkM31
(Washington)

Posts:494


10/02/2017 11:50 AM  
Basically, unless recognized civil rights (or satelite dishes) are involved, laws which are more permissive than CC&Rs cannot over-ride those as stated in the CC&Rs.
DouglasM6
(Arizona)

Posts:724


10/02/2017 11:50 AM  
Did the BOD give the management company that right?

Bylaws can be more restrictive than county and state laws. But the BOD can also vote a variance to a bylaw. If they did, they should have notified the members.

Was it a good fireworks show?

We have some residents in our little community that shoot them off. It's totally illegal here to shoot off the large mortar type shells, but I love watching it. It's just not the Fourth without fireworks!
KerryL1
(California)

Posts:7230


10/02/2017 3:23 PM  
Interesting, Douglas. What is the wording in your bylaws that gives the board the right to approve a "variance" to override the bylaws?
DouglasM6
(Arizona)

Posts:724


10/02/2017 3:43 PM  
Posted By KerryL1 on 10/02/2017 3:23 PM
Interesting, Douglas. What is the wording in your bylaws that gives the board the right to approve a "variance" to override the bylaws?




Instead of trying to remember it, I'll look it up soon and post. Ours is written to allow variances in the rules and to also allow changes to the bylaws.
KerryL1
(California)

Posts:7230


10/02/2017 4:48 PM  
Our Board can pretty y easily change rules, but most bylaws I've heard about require a simple majority of Owner approval to change them.

Oh, wait, maybe i have seen one or two HOAs on this forum where the Board has that power--can't quite remember. Looong time ago.
MelissaP1
(Alabama)

Posts:9314


10/02/2017 6:24 PM  
I cringed when I heard allowed to shoot them at the pool area... The nightmare of cleaning the pool and filter will never leave my mind. Plus considering how close our homes are. We didn't allow people to light fires without a proper chimney cleaning. We did have a house go up over a bad fireplace.

The MC isn't to tell or approve anything in my opinion. The HOA does that. So if you want to change the by-laws there better be a record of it. Because one house or a HOA owned item go up in flames, I shudder to think the liability all the owners just got put under.

Former HOA President
DaveD3
(Michigan)

Posts:796


10/02/2017 6:28 PM  
Posted By KerryL1 on 10/02/2017 3:23 PM
Interesting, Douglas. What is the wording in your bylaws that gives the board the right to approve a "variance" to override the bylaws?





My question as well.

RULES can certainly be changed. However, the restrictions that are written into the deed restrictions often provide no such variance authority to the board.


To the OP, if the governing documents do not give the board the authority to waive restrictions that are written into the documents (vs rules which are made up by the board and may be changed) then the board has no authority to grant approval for such fireworks. Even if 90% of the members said they wanted them, the board would be powerless to waive the restriction on their own. they COULD call for a vote of the membership to change the restrictions, of course.
TimB4
(Virginia)

Posts:16778


10/02/2017 7:20 PM  
Posted By DaveD3 on 10/02/2017 6:28 PM

RULES can certainly be changed. However, the restrictions that are written into the deed restrictions often provide no such variance authority to the board.




I've only ever saw such authority once.
It was authority given the Board (not the Declarant) to grant variances to any covenant.
It was in McKinney, TX.
Once I read it, we chose not to purchase in that development.
JanetB2
(Colorado)

Posts:4211


10/03/2017 1:43 AM  
Posted By JesseB1 on 10/02/2017 11:22 AM
The rules of our community state there shall be no fireworks of any kind set off in the neighborhood. This past 4th of July our management company provided approval for fireworks to be done in the pool area of the neighborhood. I posed the question to her citing the rule and article number in the bylaws of the neighborhood and I was told that the county and state laws override those of the community. Is this correct as the bylaws clearly state there shall be no fireworks?


Are you referencing "Rules & Regulations" or "Covenants, Conditions, & Restrictions (CCR's)"??? If it is in the CCR's then potentially the CCR's supersede UNLESS the State or County Law defers to the CCR's as this documents is attached to property titles and agreed to by all owners. If in just simple Rules and Regulations which were passed by a few members such as the Board, then the County and State Law most likely supersede. When you reference Bylaws ... bylaws generally are the document governing actions of the BOD for meetings, describe board and officer titles, etc. You need to note which document is being referenced.
JesseB1
(Georgia)

Posts:2


10/03/2017 6:51 AM  
It is clearly stated in the CCR that was handed to everyone at closing outlining the neighborhood that was established by the declarant. We are a newly established neighborhood in GA that is just about 100% sold out. We have not established a board yet so the management company oversees everything, our representative at the management company made the decision to allow the fireworks to be shot off in the pool area.
CjC


Posts:205


10/03/2017 7:32 AM  
Posted By KerryL1 on 10/02/2017 4:48 PM
Our Board can pretty y easily change rules, but most bylaws I've heard about require a simple majority of Owner approval to change them.

Oh, wait, maybe i have seen one or two HOAs on this forum where the Board has that power--can't quite remember. Looong time ago.





Our board has the right to change the bylaws, but the community also has the right with a 2/3 vote.

ARTICLE VIII: AMENDMENT OF BYLAWS
Section 1. Powers of Directors to Amend
The Board of Directors shall have power to make, amend and appeal the Bylaws of the
Board, provided, however, that all changes conform to the Articles of Incorporation, i.e.,
Charter of the Association and to "The Declaration of Conditions, Covenants, Restrictions,
Easements and Charges Affecting the Real Property Known as XXXXXXXX at
, i.e., covenants as recorded, and the laws of the State of Maryland.
Section 2. Powers of Members to Amend
From time to time, the Members entitled to vote, as set forth in the Charter and the
Covenants, may make, alter, amend and repeal any of the Bylaws of the Association, by a
two-thirds (2/3) vote of a quorum at the annual meeting or at a special meeting called for
the purpose, and all bylaws made by the Directors may be altered or repealed by such
Members
FredS7
(Arizona)

Posts:919


10/03/2017 10:41 AM  
> We have not established a board yet so the management company oversees everything, our representative at the management company made the decision to allow the fireworks to be shot off in the pool area.

That is unfortunate because right now there is no (community-controlled) board to straighten out the management company.

However- if there is significant objection- letting the management company know might help- because once you HAVE a board you can hire a new management company.
DouglasM6
(Arizona)

Posts:724


10/03/2017 10:54 AM  
Kerry- The wording is very similar to what is posted above. We can change the bylaws as we see fit. It doesn’t happen though. Our bylaws are very liberal and don’t see it ever needing changed.

In the original post, the term was “rules of the community”, not the covenants.
Rules can be changed by the BOD. Bylaws can be changed by the BOD. Changing the covenants requires a membership vote.

LetA
(Nevada)

Posts:947


10/03/2017 1:01 PM  
You failed to mention if this was a "professional" fireworks display or the MC gave "Uncle Bob" a check to go to the fireworks stand and buy the colossal package.
I highly doubt it was a professional display because no sane pro would put on a display so close to occupied dwellings and have nobody conduct fire watch.

Your only course of action is contacting your local law enforcement, city, county, code enforcement and file a complaint with your real estate division.

Hopefully they will not have a repeat of this next year.
JanetB2
(Colorado)

Posts:4211


10/05/2017 10:13 PM  
Posted By JesseB1 on 10/03/2017 6:51 AM
It is clearly stated in the CCR that was handed to everyone at closing outlining the neighborhood that was established by the declarant. We are a newly established neighborhood in GA that is just about 100% sold out. We have not established a board yet so the management company oversees everything, our representative at the management company made the decision to allow the fireworks to be shot off in the pool area.


The BOD nor the Mgmt Company should override the CCR's ... again, because this document is attached to property titles and is the document if or when a lawsuit is filed will be what the Court will rely upon in any judgment. And the Management Company should NOT be making any such decision without the Board approval. Even if you are still under Declarant/Developer control ... with any litigation the buck STOPS with the Board of Directors ... whether Owner ran or Developer ran.

Of course this was a few months past ... so not sure what your issue is now? If you are looking to stop in the future ... potentially at that time you will be a homeowner board.
AugustinD


Posts:3382


10/06/2017 8:03 AM  
Posted By JesseB1 on 10/02/2017 11:22 AM
The rules of our community state there shall be no fireworks of any kind set off in the neighborhood. This past 4th of July our management company provided approval for fireworks to be done in the pool area of the neighborhood. I posed the question to her citing the rule and article number in the bylaws of the neighborhood and I was told that the county and state laws override those of the community. Is this correct as the bylaws clearly state there shall be no fireworks?




Are you sure the rule on fireworks is in the HOA's Bylaws? In my experience with HOAs, such a rule is more likely to appear in the HOA's Declaration of Covenants. Bylaws and Declarations are two different legal documents with typically different procedures to amend each. Bylaws typically concern procedural matters like when the Annual Meeting must be held; rules for elections; general duties of the Board of Directors; what a quorum is; how many board members there shall be; how officers are determinted; general procedures for meetings; and so on.
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