Submitted Dec. 7, 2019
THE
CASE FOR REJECTING THE PROPOSED DECLARATIONS CHANGES
The Case For Approving the Proposed Declarations Changes characterizes them as “a very modest update of our
existing covenants.” This is simply not the case. The existing Declarations include no
restrictions whatsoever on what we may do with our property. The proposed
changes would, for the first time, add a number of restrictions that go far
beyond the proposed prohibition on Accessory Dwelling Units (ADUs).
The Case for Approving piece also states that the
proposed changes were prepared by legal counsel “based on previous discussions
among Association members at our annual meetings.” But it fails to note that these meetings are
typically attended by fewer than 10% of HOA homeowners.
A vote FOR (i.e., “Consent”) approves the entire Package
of changes. We do not have the
opportunity to vote for some, but not all, of these changes. This problem was raised by me and
others at the 2018 Annual Meeting (and by others at the 2019 Annual Meeting), and
I raised it again once I joined the Board a year ago, but the Board has
continued to go with the all or nothing approach, on the ground that it had
already paid the legal counsel a lot of money, and to start over would be too
expensive.
The Case For presentation does not address some of the most significant
proposed changes, which have been the subject
of considerable discussion in the community, other than to say that the
proposed Amended Declaration “incorporates other restrictions on leasing to
protect the interests of all homeowners.”
It does not explain the need for these changes, nor does it attempt to
address the problems that those proposed provisions could cause.
Finally, the fear that failure
to pass the Package would lead to a “doubling” of the population density of
Cherrywood is unwarranted.
LEASING
RESTRICTIONS
The Package includes
significant restrictions on homeowners’ freedom to lease any part of their
homes, including a requirement that
homeowners must identify to the HOA Board the identities of “tenants” in their
homes. According to proposed Section
4(a), 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.
The phrase “even if the tenant
has not paid any consideration” means that if a friend or relative not in your
“household” – a term which is not defined – is living with you, you will be
obligated to provide their identities to the Board, even if they are not paying
rent. I have not heard any rationale for this invasion of privacy.
What would this or any future Board do with this information?
Another provision of Section 4(a) requires that an “Owner shall not lease his Lot for an initial
term of less than six (6) months.” The
impact of this on older HOA members could be very negative. If, for example, a retiree chooses to be a
“snowbird” living in Florida for several winter months, they might
understandably wish to arrange for someone to live in their house (with or
without “consideration”) to watch the place.
But Section 4(a) would bar such an arrangement. Moreover, is noteworthy that many homeowner’s insurance
policies are voided if a house is vacant for more than 90 days – and that is a
risk no homeowner should have to bear.
In addition, Section 4(a) also requires that tenants
who are not leasing the entire lot may not reside in the home if the Owner does
not “continue also to reside in the Lot with the tenant on a full-time
basis.” The impact of this provision is
that if elderly owners of the home arrange with their adult child and their
family – or close friends – to live with them, but later need to go into an
assisted living facility for an extended period of time, then the Owner would
have to lease the entire home to the younger adult children or friends. Families in such difficult situations should
not be required by the HOA to go through these sort of legal hoops to avoid the
prospect of eviction – and the expenses that would be involved if the HOA Board
decided they were not fulfilling these new requirements.
On a related matter, it is
also important to note that proposed Section
4(g) gives the Board the “right to promulgate and adopt additional Rules and Regulations
affecting Leasing.” This is a lot of
power to place in the hands of a Board. For
example, this new power would enable a future Board to bar homeowners from
permitting non-family members to live in their homes; indeed, since the
proposed Declaration change does not define what constitutes “a member of the
Owner’s household,” there is an ambiguity as to who would have to be registered
with the HOA.
This power could be even more draconian,
since proposed Section 1, Article VI
would give the Board the power to foreclose on homeowners who fail “to comply
with the Terms of the Association’s Governing Documents.” This would be in addition to attorney
fees which mount up quickly when the Board moves against homeowners (now, only
for non-payment of annual assessments). The addition of the new restrictions in
the Package mean that homeowners (who, under the amendments, could easily be
pressured to accede to any interpretation the Board might put on these restrictions.
(See, also, the proposed Article V, Sections 8, 11, 12, 13, 14; and Article VI,
Section 1).
Perhaps even more disturbing
is the proposed language in Article VI, Section 1, which not only permits the HOA
to bring legal action against a Homeowner for “failure to comply with the terms
of the Association’s Governing Documents,” but permits such suits “by any other
Owner.” The last thing we need in our
community is for individual members to be able to sue other members for alleged
violations of increasingly complex and ambiguous rules.
In sum, the proposed leasing
restrictions would radically change the relationship between the HOA and its
members – and not for the better. I have
heard no good justifications for any of these leasing restrictions, restrictions
which would not improve life in Cherrywood, and could make life worse for many
people.
ACCESSORY DWELLING
UNITS
The Case For Approving piece posits a series of fearful
hypotheticals. For the reasons discussed below, the assertion that we need to
vote for the all-or-nothing Declaration Amendments in order to avoid “doubling”
the population density of Cherrywood is, in my view, unwarranted. The terms of
the new County regulations, upon which the Case
For relies, may be found at:
Proposed Section 5, Article IV would bar any
“accessory apartments.” Accessory apartments, attached to or within existing
homes, have already been allowed for
more than six years, must secure County building permits and follow Code
building codes, and there is little, if any, evidence that they have created
any problem in Cherrywood. There is no reason to believe that the removal of
the current limit on distances between homes that have accessory apartments
would result in a proliferation of such apartments – particularly since there
is no evidence that there are very many of them anywhere in Cherrywood. The
proposed County regulations do not
change the existing parking rules for ADUs more than a mile from a Metro Stop,
the Purple Line, or a MARC Station (“three off-street
spaces are still required”). On the other hand, prohibiting them could great
hardships for some families.
Enactment of Section 5 would
mean, for example, that we could not convert our basements into living quarters
with kitchens, bathrooms, and separate entrances for our parents, grandparents,
or adult children. Do we really want to prohibit homeowners from adjusting to
economic hardship by bringing in family members, or another trusted family,
into their homes in this manner? During the Great Depression, my grandmother was
able to keep her family together and stay in her home after my grandfather’s
untimely death because she was able to convert part of her house into a
separate apartment, which she rented to her sister’s family and later to
another family. We should not prevent families who may fall on rough times from
saving their homes, or from helping their loved ones. There is no reason to
think that there would be a huge proliferation in the number of families who
might need to take this route.
As for “backyard houses”, it
is true that the Council proposal would allow detached ADUs on lots smaller
than one acre. But there are significant zoning and
building regulations that would have to be complied with.[1]
And building such an ADU would be quite expensive – probably at least six
figures for a house built on site and perhaps half that for a prefabricated
house. Thus, while detached ADUs will be
permitted by the County, the process and the construction would be quite
expensive, and that factor alone suggests that few homeowners will decide
to build such houses.
Nor, as the Case For piece
suggests, is there a real “risk that people will begin to buy homes in
Cherrywood with the plan to build an ADU.”
This fear is speculative in the extreme.
No one can scoop up properties, since sellers have to agree to
sell. And the economic benefits to such
imagined speculators are quite a reach.
A prudent investor would not take such a risk.
So the idea that suddenly the number of single-family
houses in Cherrywood would explode is, in my view, mistaken.
In any event, on the off-chance that we would begin to
see a proliferation of ADUs, there would be plenty of time for the HOA to enact
a free-standing Declaration amendment to deal with it. The Case
For piece states that “collecting signatures” for such an amendment “is an
extremely tedious process,” citing the failure to secure enough signatures for
the Pond Transfer. But this failure is, in my view, more attributable to the
lumping together the laundry list of Declaration proposals into a single
all-or-nothing Package at the same time the Pond Transfer proposal was made
than any other factor, causing many people to simply turn off from, or to ignore,
the whole process. If a strong, clear
case can be made of a clear and present danger – not a speculative fear – and
the proposal does not include a number of unrelated, problematic changes, then
the membership is far more likely to pay attention.
This brings
us back to the point that
the entire Package of
Declaration changes is to be voted on “all or nothing.” If the community believes that there should
be restrictions on ADUs, such restrictions could be presented by the HOA Board for
a free-standing vote, after discussion with the community as to the kinds of
restrictions members might deem appropriate. It is unfortunate that the HOA Board has
declined to offer such an option. But prohibiting
accessory apartments in existing homes (something that has been permitted for
more than six years and has not had demonstrable deleterious impacts), invading
people’s privacy, making many homeowners’ lives potentially more difficult
through the leasing restrictions (both clear and ambiguous), and transforming
the HOA into a form of sub-government, are too high a price to pay for this
other restriction, the need for which is speculative in the extreme.
SUMMARY
Fewer than 38% of Cherrywood
households have voted for the Package. People
moved here, in part, because the HOA does not impose restrictions on individual
freedom, and is not, in effect, 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 Board is presently limited to housekeeping
matters, which are important, and have been well-carried out. The proposed Package
does not address an actual problem in our community, and would radically change
the relationship between the Board and the community. For these reasons, I urge people to vote
against the proposed Declaration Package.
David
Fishback, Secretary
Cherrywood
HOA Board of Directors
fishbackhoa@gmail.com
[1] The new
zoning regulation mandates that “the size of the detached ADUs must be the smaller of 10 percent of the lot site,
50 percent of the footprint of the principal dwelling, or 1200 square feet. Existing
rules limiting the construction of accessory structures apply, including height
limits, maximum lot coverage requirements, and stormwater requirements. In
addition, the greater rear and side setbacks currently for detached ADUs
remain. ”
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