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Motherly Abuse

This is a very interesting find for me. As I am reaching a high level of frustration with my HOA and was actually considering legal action and its cost. Hopefully I can get some advice and perhaps sympathy.
I will jump to the point:
Recently we did a drive way extension by paving the area next to the drive way with pavers. This results in the gas meter being in the paced area, next to the house. I did this without permission and sought it after the fact, before the HOA notified me of any violation.
They first rejected it because ” the gas company requires protection of the meter by way of bollards when it is in the paved area”. SW Gas has no such rules. I resubmitted with SW gs response, now it was rejected because it is in violation of town codes. Extensive discussion with all potential town departments resulted in, you guessed it, no such code exists. I also discovered the HOA attempted to report me as a code violator and they were told no such code exists.
I re-re-submitted again with the town response. Again rejected, with” THE HOA has the right to require bollards or any features”.
Per the CCRs the HOA is reviewing the landscape changes for the purpose of aesthetics and the owner is responsible for meeting building codes.
They also mentioned that they have sent letters to 52 other owners to add this requirements. I have seen many homes in the neighborhood without the bollards and with driveway extension. Seems two years ago a teenager backing onto a driveway extension hit the meter and cause a fire and gas leak. All the houses around the incident have various forms of bollards, most would not meet any safety standards!!
I could just go along an spend the $100 for a pre cast bollards and install it for another $200ish for a total of $300. Its the principle of the thing that is eating at me, clearly a motherly instict that is leading to abuse of power. I probably would have done it if they would have been upfront and honest rather than making me run around thinking I am breaking the law.
Any thoughts, advise?

4 Responses

  1. dennisl

    Hemant,

    You are absolutely correct with the run around that you received by your association, most probably from an incompetent community manager. While the association does have the right to establish a rule requiring bollard protection of utilities when incorporated into a drive way, they cannot do that selectively. The rule must be approved by the board or the ACH committee and published to the entire community prior to invoking that rule. I’m willing to bet that they have no such rule and they are simply creating one on the fly. Ask the association for the written and published rule or standard that they established and when it was approved by the board or issued by the ARC standards document. Without an established and published rule their imposition of this standard to your driveway extension is arbitrary and capricious and will never hold up in court. If forced too you are willing to take the association to court to challenge the validity of this fabricated and undocumented restriction.

    If however when the incident and fire occurred the association did in fact properly establish such a standard then unfortunately you are obliged to comply with the duly established rule. Because you were not aware of the rule does not exempt you from compliance with the rule. It could very well be that many homes in the community extended driveways and did not put up bollards because they were modified prior to the rule being in place.

    You situation depends on whether the association properly established and documented rule prior to your driveway extension.

    This is another example of implementing a physical modification to your property without getting the necessary approval from the ARC before hand. Like it or not all homeowners in these common interest communities are subject to the covenant restriction, and architectural standards and review process without exception. Not getting that approval before hand is seldom met with sympathy after the fact. The association cannot allow after the fact approvals because they will never get anyone to process request before hand in the future. You will always be subject to much more scrutiny after the fact than if you were upfront with your plans and sought approval before hand.

    Dennis

  2. dennisl

    Hemant,
    One more thing. If you were to challenge this using the ADRE dispute resolution process you would have to frame it as a violation of the governing document. And it would cost you $500 to file such a petition. While you can get that money back from the association if you prevail it will cost you much more money than it would if you simply put up the bollards.

    When you think of it for a minute having a gas meter exposed within your paved driveway is an inherently dangerous situation, that is your best interest to protect. While your principle issue is valid the fact remains that providing protection for the meter is simply the smart thing to do.

    Dennis

  3. Hemant Desai

    Dennis,
    Thank you for the feedback.
    I agree, its best to get pre-approval on these. IN this case it was, as they say, project creep. We were doing pavers in the back yard and the wife said, lets do this area too, since the contractor was already on site!
    Unfortunately, the design of the house and the placement of the gas meter is really not good from a safety perspective. Even when there was no ” driveway extension” people still drive on that area and potentially cause an incident, my neighbor has come close to ding it a few time, and his is just rock in the area.
    I assume the HOA can’t retroactively impose the requirement of in stalling bollards, neighbor across the street has a driveway extension without any gas meter protection for more than 20 years and the ownership has changed many times!

    I have asked the HOA for the document showing the rule on this, and they have not been able to provide it to date. Just as when I asked them which town code I was in violation, and they couldn’t cite a code!

    I am not sure if its the manager that is incompetent and being power happy or someone on the board. I did attend the monthly meeting last night to listen in and see the dynamics…clearly the manager is the driver, at least in the meeting. Don’t know what happens behind doors.

    I think what the board does not realize is that they are opening themselves up for liability by this supposed rule. If you require bollards, then you have to site the basic safety characteristics it should meet. Since they are overstepping their role of approving for aesthetics and going into safety aspects. Then I would argue the clauses of not being liable go out the door.

    Like I said previously, its easy enough to add the bollards, what I am looking for is that the board needs to acknowledge they are doing this in the wrong manner and not following their own procedure and they need to be more prescriptive about the requirements.

    Again, Thank you much for your feedback and suggestions.

    Hemant

  4. dennisl

    Hemant,

    Within HOA’s homeowners have to pick their battles. To assume that the board or the community manager or even the ARC committee will ever publicly admit that they errored in placing this restriction on your project is a pipe dream that will most probably never happen. The fact is they acted the way they did and it was totally inappropriate, there is absolutely no reason for them to back down unless they are taken to court and forced to do so by the court. You have absolutely no power to force the association to do the right thing.

    Even if that happens there will never be a public acknowledgment of wrongdoing and they will take to opportunity to blame you for the legal action against them and the legal cost of defending themselves from this false and spurious claim. (The same language is use for any homeowner claim against the association universally) They may even raise assessments against everyone in the association and cite your legal challenge as the reason for the assessment increase, while never telling the community that they were found in violation. In this way they turn the association against you and you are turned into the villian, but most importantly this sends a message to everyone in the community to not challenge the association on anything or this will happen to them as well. They control the communications to the community and most people believe what ever the association tells them. This is why my legislation to assure the freedom of speech and freedom to assemble peacefully in these communities was so important.

    Dennis

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