Kalway imposed restrictions vs energy conservation measures
According to the interpretations of above stated topic; my HOA states that: “residents’ roofs cannot be painted white in order to take advantage of a potential 7-10% reduction in HVAC electric charges unless – there is a 99% participation by and favorable vote by the residents for the change.” The HOA states that this is the requirements stated in the Kalway document. I understand the intent of this document and agree with its requirements in order to prevent a slim majority from taking advantage of the minority. For example, things like selling the development to someone to construct a mall etc. This would benefit some but – ruin others who don’t want to sell. I believe that while the gov’t had good intentions – they went to far in thier restrictions.
At the last HOA mtg., I had the opportunity to discuss my proposal with our new state legislator (Neal Carter) and he wanted me to connect with you and your committee. Mr. Carter is also a proponet of ‘stepped’ percentages’ for approvals for potential changes to the CC&R’s. He thought I could add some ‘ammunition’ to your efforts to get changes to this ruling. Please advise if I can assist.
Regards, Rick T
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Rick,
Your HOA is FOS. Kalway talked about material changes to restrictions on private property that were not properly noticed in the original declaration. The ruling is about adding new restrictions or materially altering restrictions that were not noticed. Removing or reducing a restriction is not affected by that ruling. What do your existing CC&Rs say exactly right now relative to roof material or color? Please remember design guidelines are not CC&R restrictions and are not treated the same. Most design guideline actually exceed their authority to restrict private property if not specifically restricted in the declaration. The association is empowered to enact general design guidelines to maintain the general character of the community intended by the declaration and declarant if they are directly related to preserving property values. The color of your roof tiles has absolutely nothing to do with maintaining the property values of adjacent homes, especially if one color will increase the property value and energy efficiency of the house.
I have drafted a declaration amendment legislative proposal for Rep. Carter, but based on his recent assignment as House Speaker Pro Tempore, his time availability to introduce and support that legislation is in danger. We continue to work on driving that legislation to the introduction if possible, but Neal has a new baby, a new job outside of the Legislature, and the second-highest position in the leadership of the House. He is trying to work this out, and I fully intend to allow him to decide what he can take on without pressure from me. While my proposal is comprehensive and does expressly provide for three different tiers of declaration amendments, it will retain one tier with a practical application of the Kalway decision.
Again, I suspect your issue is not in your CC&Rs (declaration ) but in the rules and design guidelines implemented by your community over its authority. I’ve also drafted a legislative proposal to define the truth of these communities’ rule-making authority and am actively trying to get sponsorship for that legislation. Time will tell if I can get it this year or next.
Dennis