Proposed Changes to Covenants
Saturday, May 6th, 2006The Process of Amending the Original Covenants and the Rationale with Listed Proposed Changes
When we made the transition from developer to an autonomous HOA, we saw many shortcomings with the established covenants. In fact, there were many questions as to what were in fact the legal controlling documents.
On May 2006, the community overwhelmingly accepted most proposed changes. The voting results are here.
Here is what happened….
Will the Real Declaration of Covenants Please Stand Up
We have a number of different Declaration of Covenants and Amendments floating around. Therefore, our first task is to identify the most appropriate document from which we will operate. It is our opinion that we cannot operate simply from the documents the township provided. We are using the following logic to ascertain which are the Real Declaration of Covenants:
We have gathered a number of documents have the township official signatures. When we received the Declaration of Covenants from the township, we found that they were not consistent with other documents. Either we did not get all of the documents from the township, or the township failed to file the new amendments.
We are considering a historical perspective. We know that the original documents did not have shed/fence rules and that this was a later addition. The Declaration of Covenants from the township did not contain bylaws on sheds.
We are noting which documents gained the widest circulation. Atlas Real Estate distributed a Declaration of Protective Covenants. Those who have moved in since 2004 received these copies. Some who have moved in prior to 2004, received addendums which include information found in the 2004 documents. To date, the Atlas Real Estate documents have not been challenged as inauthentic.
We have gained a historical perspective and rational from those developing the subdivision. The correct documents have shed and fence allowance rules.
Our conclusion is that the Covenants currently posted on the website provide the best boilerplate. They are consistent with the majority of documents distributed and reflect a historical perspective and rational that is shared between those developing the subdivision, those selling homes in this subdivision and many of those residing in the subdivision.
Our Plan for Changing the Covenants
Because of the discrepancy related to the documents, the Committee is proposing a change to our Covenants. We will use the best information gathered from other amendments. The committee views the Covenants as a tool for maintaining a harmonious relationship among neighbors and maintaining property values. To accomplish those ends, we are looking at the Covenants in four ways ways:
- Add what is missing: 1) nomination/voting procedures; 2) meeting rules; 3) terms of office; 4) qualification for committee members; 5) statement about recovering any legal fees it incurs in action/s against a homeowner.
- Delete unnecessary, redundant rules: Rules that pertained to the developer and ones that the Township of Davison will enforce through their ordinance division.
- Update archaic rules: 1) properly define what a commercial vehicle is; 2) allow satellite dishes
- Relax burdensome rules: 1) allow a treated wood deck with rat wall under sheds
We will present these modifications to you in a variety of ways:
- posting them on the website and encourage discussion on the forum
- preparing a brochure and distribute them to all in the community
- hosting at least two Open Chat sessions related specifically to the drafts
Our Conundrum
Our current Covenants state that we need 2/3 votes. Knowing human nature, we will not get 67 people to attend a meeting. Further, not all 67 people will agree. We have many important changes. If these Covenants are not changed, it will cripple our ability to function properly. We will secure as many votes as possible on the day of the Community Meeting, then go “door-to-door” to gain the rest of the votes from those unable to attend.
If we are successful in receiving the votes necessary to change the Covenants, we will take the new Covenants to a lawyer who specializes in subdivision law. He will review them, make the necessary legal modifications and file them with the township.
You may view/download the Revision of the Declaration of Protective Covenants. This is a work in progress. If you would like to propose changes and discuss our progress, please do so by either posting an article on the forum or posting changes using a submission form.
List of Proposed Changes including the Rationale
Clarification of Definition: The title (Architectural Control Committee) will be eliminated. It is creating confusion, giving the impression that it is a different entity than the Committee.
Relax 4.1: Shed “must be built on concrete slab” to “must be built on either a concrete slab or treated wood platform with rat wall.” The cost for installing a concrete slab is enormous. The intention of a concrete slab is to prohibit animals from nesting in sheds. A treated wood platform will perform just as well if a rat wall is installed.
Clarify 4.3 We suggest adding the adjective “permanent” to “swimming pools.” Now that inflatable, temporary pools are commonly used, these should not be subject to Committee approval.
Update 4.4 The current Covenants allow for asphalt driveways. All driveways in the subdivision are concrete. We suggest, for uniformity sake, that we preserve concrete driveways and not allow for asphalt drives.
Delete 4.6 “A complete working set of all plans, specifications and site plans proposed for any structure in the subdivision and a landscape plan for the subject lot must be submitted for approval to the Architectural Control Committee.” No longer necessary since the homes have been built.
Delete 4.7.a. “No article or service shall be sold or offered for sale on the premises, except as such is produced on the premises by such occupation.” Too restrictive. The intent of this rule may be to a prevent a person from turning their garage into a factory. A strict interpretation would prevent one from selling Avon and MaryKay products. It is an unnecessary rule since Davison Township Ordinances don’t allow home factories.
Update 4.7.e. “No more than one (1) home occupation per dwelling shall be permitted.” The rationale behind this archaic rule is to limit the amount of traffic in the subdivision. This rule, as written, still does not guarantee that a home occupation will negatively affect other neighbors. With the advent of the internet and phone sales, this rule neither guarantees a harmonious community relationship, nor does it necessarily reduce property values.
Relax 4.8: the number of animals from 2 to 3 of any combination (dogs/cats). This matches Davison Township’s ordinances.
Update 4.8: A “commercial vehicle” in the 40’s was a large, unsightly vehicle. Today, many use standard pickup trucks and cars for both personal and commercial purposes. Therefore, we are deleting the following language “…which shall bear signs of have printed on the side of same reference to any commercial undertaking or enterprises…” and properly define a commercial vehicle as one which exceeds 6,000 lbs GVW.
Update 4.10: Delete “satellite dish.” A decade ago, satellite dishes were commonly 6 feet in diameter. There is no need for this rule now that these dishes are commonly only 18 inches.
Update 4.10: We propose to allow for “retractable laundry drying equipment.” “T” post or umbrella-style clothes lines were unsightly. We should allow retractable clotheslines which are not as unsightly as those in decades past. See example below:
Relax 4.11: Changes the wording “fines are not to exceed $500 per month” to “$100 per month.” The purpose of fines is to force those who are not complying with the Covenants to make the changes. A $500 fine for having a defective light would financially prohibit most of us from fixing the light.
Relax 4.11.a: Delete 9% interest language and replace with a straight penalty of $10/day. Since we may not have future bookkeepers who have strong accountant skills, calculating an interest-based penalty seems too burdensome.
Relax 4.19: The committee should not be burdened with the task of approving mailboxes which need to conform to USPS standards anyway.
Delete 4.21: Not applicable since the developer has turned the association over.
Delete portions of 4.22.a. “and location on lot, estimated cost of such building or other structure and the grading and landscaping plans of the lot to be built upon.” The location on lot is controlled by set backs. It is not the right of anyone to know and make decisions related to the costs of building. Further, do we really want to require our residents to submit landscaping plans for approval? This requires a board to apply subjective standards to other’s personal tastes. If certain landscaping features are to be rejected, then they should be clearly defined in the Covenants and not left to the subjective interpretations of a board.
Further deletion: “In no instance shall a building or a design exactly the same as any other in Chestnut Hills be permitted” This has never applied to Chestnut Hills. There are a few designs from which to choose. Many homes are duplicates.
Update and Add 4.23: The Architectural Control Committee shall consist of not fewer than (5) nor more than seven (7) persons appointed by the Association (defined in article V) by a majority vote of a quorum of its membership. In the event that a member shall die, resign from the Committee, or no longer be a member of the Association, the remaining members of the Committee shall fill the vacancy so created by majority vote. Members of the Committee shall serve without compensation. The Architectural Control Committee may adopt rules for the performance of its duties and the conduct of its meetings and may appoint one or more persons to act for it between meetings.
Each member: Must be a resident of the community for at least one year; Must be current with Association Dues; Term of office is three years. The community will vote for the Board and they in turn will elect officer positions. There will be 3 year terms for all board members, with staggering terms, so there will be consistency in running the organization. No term limits.
President: No Criminal Record, at least 18 yrs of Age, Resident for 2 years, Citizen of US., term of office is two years, may be back to back
Vice-President and Treasurer position the same as above except for only 1 year residency.
Add Nomination Procedures: Nominations for members of the Architectural Control Committee must be received by August 31. Only those who accept the nomination, are current with payment of Association Dues and possess the ethical standards outlined above, will be placed on the ballot for voting.
Add Community-wide Meetings:
Special meetings may be called by the officers and committee, due notice having been given at least two weeks preceding the meeting.
An annual meeting will be held during the month of October at a date determined by the Association Board. The purpose of this meeting is to establish the following for the next year: Voting on nominations received for board members; Budget; Business matters: to be published for the community’s knowledge at least two weeks before the annual meeting.
The following rules shall apply at all meetings:
Twenty percent (20%) of association members shall constitute a quorum for all meetings.
A simple majority vote of the quorum shall apply to all matters as otherwise specified in the Covenants.
All matters of voting shall be by ballot.
The President shall preside at all meetings except in such cases where he is absent or the business to be transacted is of such a nature as to involve him/her, in which case the Vice President shall preside.
New business must be submitted to the officers and committee before it is brought to a meeting. Therefore, no new motions, with the exception of a “no confidence” motion will be taken from the floor.
Add Parliamentary Procedure: The rules contained in the currently revised Robert’s Rules of Order, shall govern this association in all cases to which they are applicable and in which they are not inconsistent with these Covenants and any special rules of order this association may adopt.
Relax and Add 4.24 Fences: to allow for chain-link but prevent privacy fencing. Rationale: The developer already relaxed this restriction. Since the Covenants do not address privacy fencing, this was added to provide clarity. Privacy fencing is not the same as screening around a hot tub on a deck. We simply want to avoid creating “walls” throughout our community.
Relax and update 4.25 Any such fence shall be made of wood with a height not to exceed four feet. Why wood only? Fences may be chain link. Also, with composite/plastic fencing available, this restriction needs to be updated.
Delete 4.26 Residents should have the right to landscape their yard within reason. While it is not in our interest to promote a stripping of the land, this rule seems unnecessary. The Committee should not be burdened with examining each tree in question and deciding its fate.
Relax 5.3 The Covenants require a “two-thirds” vote to do common improvements to the subdivision. We suggest changing this to a “majority” vote. The “two-third’s” restriction is generally used when the right to speak or a previously determined action is being reversed. To apply this restriction to these common activities is burdensome. (cf. Robert’s Rules of Order, Article 6.39).
Relax 6.3 This rule requires a two-thirds vote of the community to amend the Covenants. That means at least 67 households would have to cast a vote in the affirmative to make the necessary changes. This is problematic for at least a few reasons:
Homeowner’s associations rarely have this kind of community participation at their meetings.
The Covenants are an important instrument. They should not be changed frivolously. However, they should be updated from time-to-time. When those updates are necessary, the community should not be unnecessarily constrained by this impossible requirement.
While a proxy (absentee) vote could be used to gain these votes, it seems unreasonable to seek the vote of individuals who were not present at a meeting on such matters. Those voting would not be as informed as those who were directly involved in a discussion related to changes.
Many associations establish a quorum. The Community Associations Institutes suggests establishing a quorum of 20%. This number provides a reasonable starting point.
Add Indemnification: A provision that protects the officers from personal liability.
