CHERRYWOOD HOMEOWNERS:
* PLEASE VOTE NO OR
ABSTAIN ON THE BY-LAW DECLARATION VOTE
TO PROTECT
YOUR RIGHTS AS HOMEOWNERS
* PLEASE VOTE YES ON THE
PARCEL E POND TRANSFER
(Note: The author of this piece has been a member of the
Cherrywood Homeowners Association Board of Directors since October of last year,
but the opinions expressed are entirely his own.)
INTRODUCTION
In the recently-sent Cherrywood Homeowners Association
(HOA) newsletter, an article at p. 3 urges members of the HOA to vote, yea or nay, on a
package of changes to the HOA by-laws (also known as Declarations). The article recognizes that we currently have
“a very limited declaration
of covenants, conditions, and restrictions that have served us very well over
the years.” The proposed changes would, for the first time, add a number of
additional restrictions. The article states that “[m]any of these changes
have been discussed at the Association’s annual meetings,” but it fails to
note that these meetings are typically attended by fewer than 10% of HOA homeowners.
Nor, as far as I can recall or determine, were there ever any votes at those
meetings asking the HOA Board of Directors (the Board) to seek new
restrictions. Nevertheless, last year
the Board decided to ask its law firm to draft such restrictions to be added to
the By-Laws.
My wife and I have lived
in Cherrywood since we bought our home here in 1986. A big part of
our decision to buy here was that there were virtually no restrictions on
homeowners’ decisions as to what to do with their homes. In 2013, I retired as
a career attorney with the U.S. Department of Justice. At the October
2018 HOA Annual Meeting, I was elected to the Board.
Below, I briefly explain some of the reasons why I believe the proposed Declarations (By-Laws) changes should be
rejected.
WHAT THE PROPOSED BY-LAWS
CHANGES WOULD DO
The proposed changes include significant restrictions on the
freedom of homeowners to lease any part of their homes, including requirements
that homeowners identify to the Board the identities of “tenants” in their
homes. According to the proposed Section 4(a) of Article IV, “A ‘tenant’ shall
include any person occupying the Lot other than the Owner or a member of the
Owner’s household, even if the tenant has not paid any consideration.” “Household” is not defined. So, for example, the identity of an uncle or
cousin living in your house would have to be provided to the Board.
The law firm fashioned a package of changes, which also included
probably-unenforceable restrictions of telecommunications towers and
prohibition of accessory apartments. The
package also included a variety of provisions that would make it easier to
bring lawsuits against homeowners, and provide leverage that, in my view, could
make it, as a practical matter, impossible for homeowners to challenge efforts
by the Board to enforce the new restrictions, regardless of the restrictions’
validity under County law. As fashioned by the law firm, all the changes must be voted on as a package; voters are not permitted to vote for some, but not all.
STATE OF THE VOTING AND
REASONS TO VOTE NO ON THE BY-LAWS CHANGES
These proposals, which were sent to HOA homeowners on September
19, 2018, may be found at https://tinyurl.com/cherrywoodhoa. To take effect, they must be approved
by 60% of the HOA’s 608 households.
At the October 24, 2018 annual Cherrywood HOA meeting
(attended by about 7% of the household members) there was an extensive
discussion of these proposals. The
proposed changes were to be voted on as a single package, even though they
dealt with several distinct issues and would, for the first time since the
creation of the HOA more than 30 years ago, include significant restrictions on
our freedom to use our homes as we please. This concern was voiced by many in
attendance.
I shared these concerns
at the Annual Meeting, and for that reason I stood for election to the Board,
and was elected. I have been impressed with the dedication of the Board
members, who carry on the necessary, but largely unnoticed and likely
under-appreciated work for the community.
But on this matter, I
think that the Board’s attorneys have fashioned a package (including
nearly-impenetrable legalese) that would ill-serve our community, and it is not
at all clear to me that the attorneys fully explained all the implications to
the Board. Indeed, at the February 2019 Board meeting, some members said that
they thought that the identification-of-tenants provision of proposed Section
4(a) was already required by the County, and one member provided me with a
provision of the County Code (Section 29-51(h) that he thought confirmed that
impression. I read the provision, and discovered that nothing in County law
requires that the names of tenants be submitted to the County. I confirmed that understanding with the
appropriate official of the County Department of Housing and Community
Affairs.
In the nearly six months
since the last Annual Meeting, nowhere near 60% of households have submitted
ballots to approve the By-Laws changes.
The January HOA Newsletter urged approval, but as of mid-January only
29% of households had approved. As of
March 14, only 34% had approved.
It takes 60% to approve a change in the By-Laws, and for good
reason. People moved here, in part, because the HOA does not impose
restrictions on individual freedom. As noted above, the proposed By-Laws change package includes such restrictions. People have not moved
to Cherrywood to join what effectively could become a form of
sub-government in Montgomery County. So our foundational documents
provide that any move to change that dynamic must be overwhelmingly
supported. The role of the HOA and its Board is presently limited to
housekeeping matters. These matters are important, and have been
well-carried out by Board members for more than 30 years. The proposed package of new By-Law provisions
does not address an actual problem in our community.
PLEASE VOTE TO APPROVE
THE PARCEL E STORM WATER MANAGEMENT POND TRANSFER PROPOSAL
I do want to note one other matter, still pending from last
October’s Annual Meeting. That is the vote on the Parcel E Storm Water Management Pond Transfer, which is discussed at p. 2 of the Spring 2019 HOA newsletter. There is a large pond near the
Cherrywood Playground and Soccer field that is owned by the HOA, but as to
which we have both liability and expenses, even though the ownership in no way
benefits the HOA. The County has agreed to take ownership of and
responsibility for this Parcel E, but, under our By-Laws, we need a 2/3
positive vote to complete the deal. As of March 14, 43% of households
(261) had voted in favor, and only 6 households had voted against it.
Everyone on the HOA Board agrees that it would be useful to complete the transfer,
so it would be good if those who have not yet voted on the Parcel E Pond
Transfer now do so to complete the deal.
David Fishback
April 18, 2019
April 18, 2019
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