Friday, December 13, 2019

The Case for Rejecting the Proposed Declarations Changes for the Cherrywood Homeowners Association


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. ”

Monday, November 11, 2019

Is Amy Klobuchar right about Pete Buttigieg, and the reason for her low polls numbers in Iowa?

South Bend, Ind., Mayor Pete Buttigieg (D) tweeted a picture of himself and Sen. Amy Klobuchar (D-Minn.) grinning after learning they would practically be seatmates for their trip to Houston, the site of the third debate for the 2020 Democratic primary contenders.


A few observations on Amy Klobuchar’s complaints, reported in the Nov. 11 edition of The Washington Post, in a story entitled “Klobuchar takes aim at Buttigieg: Says women in politics are likely to be held to ‘a different standard.’”

Klobuchar’s complaint that a woman with Buttigieg’s resume would not be in the upper echelon in the polling (and that, inferentially, she should be where Buttigieg is now) is really (or should be) directed at the voters, not at Buttigieg.  If voters see Buttigieg as a better alternative to Biden or Warren/Sanders, and sexism is involved, that is not Buttigieg’s “fault.”

Klobuchar is understandably annoyed that she cannot convince her neighboring Iowa Democrats that she is a better alternative.  But the evidence suggests that that is not due to sexism or that somehow Buttigieg should not be seriously considered because of his youth and the size of the city of which he has been mayor.  While it is a reasonable hypothesis that a degree of sexism may color the views of voters and/or the punditry, I suggest that the facts do not show this to be a significant factor, particularly in the Democratic Primaries.

First, it is note worthy that the No. 1 or No. 2 candidate in current polling is Elizabeth Warren.  And for a while Kamala Harris was polling very high – until voters paid more attention to her and lost enthusiasm.

Second, there are or were a whole bunch of male candidates with resumes including federal and state office holding which are (like Klobuchar’s) far lengthier than Buttigieg’s and who might also be seen (like Klobuchar) as in the “moderate” lane:  Booker, Inslee, Hickenlooper, Bennet, Bullock, O’Rourke, Castro.  Yet, none of those broke out of the pack the way Buttigieg has.  So unless Klobuchar is clearly more capable than those candidates, her gender might not be the reason that she, too, has not broken out.  I have no doubt that Klobuchar really believes that she is so much better qualified than these male Senators/Governors/Mayors/Cabinet Members – otherwise she would not be running for President.  But that does not mean that everyone who does not accept her assessment is guilty of unconscious bias.

Third, while a lengthy political resume can be a plus, at times the simple quality of a candidate overwhelms their competitors’ CVs.  2008 is a classic example:  Hillary Clinton had a far more impressive political resume (as did the other contenders) than Barack Obama, yet Barack Obama, who had less than two years of federal elective experience and just a few years in the state senate,  projected a warmth, intelligence, and wisdom that convinced voters that he would be the best candidate and president.  He was elected in 2008 re-elected in 2012, both times with absolute majorities of the popular vote.  And that occurred despite the conventional wisdom that an African American could not win in the general election.  Given Obama’s continued soaring popularity, I suspect most Democrats are glad they chose him.

My sense is that Buttigieg has (and projects) the wisdom, intelligence, and knowledge of Barack Obama combined with the persuasiveness of Bill Clinton at his best (remember Obama’s designation of Bill Clinton as the “explainer-in-chief” during the 2012 campaign?).  The more people meet Buttigieg up-close, the more impressed they are.  That is why, in the most recent Iowa poll, Buttigieg scored 19%, second only to Warren’s 20%, and ahead of Sanders’17%, Biden’s 15% (and Iowa’s next door neighbor Klobuchar’s 5%).  And that is why, in the most recent New Hampshire poll (where Buttigieg is now just starting to show up in town halls, having spent so much recent time in Iowa), Buttigieg scored 15%, compared to Biden’s 20%, Warren’s 16%, Sanders’ 14% (and Klobuchar’s 3%).

The current boomlet for Buttigieg is happening not because he is male, and, indeed, may be despite his sexual orientation -- just like the boomlet for Obama, which became explosive, was, in some circles, despite his race.  I know the previous statement is overly simple.  Most Democratic voters are neither anti-gay nor anti-black, but many fear that enough general election voters harbor such biases that nominating a Buttigieg (or an Obama, or, for that matter, a Warren) would be too risky.  There were Hillary Clinton supporters in 2008 who had similar fears about Obama. Anyone even considering voting for a Democrat – and polling certainly suggests that that is well over 50% of the electorate -- will not be dissuaded by the Democratic nominee’s gender, race, sexual orientation or age.  So the question is whether the nominee’s qualities are such that they will cause voters to set aside any conscious or unconscious biases they may harbor.  And let’s face it, every one of the plausible candidates could trigger such biases.

It is the quality of Buttigieg’s candidacy that is leading to his surge in the two early states, where the candidates are spending most of their time and energy.  With no one polling more than 20% (and the Warren/Sanders totals being 37% in Iowa and 30% in New Hampshire), Pete Buttigieg becomes a very plausible nominee.  I think that the more people pay attention to him, the more support he will get.

My point is that Democratic voters are mostly looking for the best person to be the nominee and President of the United States.  Those watching most closely are increasingly concluding that Pete Buttigieg is that person.  And with good reason.



Sunday, November 10, 2019

"No exams, no uniform and no football team: Inside the best school in the world"



Thursday, November 7, 2019

The importance of the Democratic nomination competition: Medicare for All (as set forth by Warren and Sanders) could sink us.

With so many of us understandably fixated on the horror show which is Donald Trump and his presidency, it is easy to be complacent about the Democratic nomination competition. Recent polling in battleground states is chilling, for it indicates that we could beat Trump soundly in the popular vote and still lose in the Electoral College.
 https://www.nytimes.com/2019/11/04/upshot/trump-biden-warren-polls.html

As never-Trump Republican Michael Gerson opines in a recent Washington Post column entitled, in the print edition, A health-care plan to get Trump reelected, Elizabeth Warren’s weakness in head-to-head polling against Trump in the battleground states — “even at this low point of presidential character and Congressional GOP courage” and notwithstanding her ability as “perhaps the most politically talented Democratic challenger” — is attributable to her Medicare for All plan and her commitment “to abolish all private health insurance, put a government bureaucracy in charge and spend an additional $2 trillion a year on her ambitions. http://www.washingtonpost.com/opinions/warrens-climb-in-the-polls-should-horrify-democrats/2019/11/04/429f4032-ff4d-11e9-9518-1e76abc088b6_story.html 

But it is not just never-Trump Republicans sounding this warning. Progressive economics columnist Catherine Rampel, in that same edition of the Post,  explains clearly why Elizabeth Warren’s numbers do not add up.  http://www.washingtonpost.com/opinions/elizabeth-warren-tried-to-do-bernie-sanderss-homework-for-him-she-failed/2019/11/04/bddfb0b0-ff48-11e9-8bab-0fc209e065a8_story.html That, on top of Rampel’s observation that recent polling shows that “eliminating private insurance is not actually a political winner” (see, e.g., https://www.cnn.com/2019/01/29/politics/medicare-for-all-polling/index.html) should give all Democrats pause with respect to Warren’s candidacy.  I do not see the numbers increasing in support for the proposal; the more it is closely examined, the more nervous voters get -- and justifiably so.  

Rampel’s column has particular resonance for me. Early on, I saw Warren, with her energy, intelligence, commitment to progressive values, and clear-eyed understanding of how insufficiently regulated Capitalism is destructive of the public welfare, as a very plausible choice for the nomination. But her rigid commitment to Bernie Sanders’ Medicare for All proposal is both a political and policy mistake — indeed, a potential disaster with the specter of another four years of Trump looming over us. 

This does not mean that we ought to nominate Joe Biden. His weaknesses as a candidate are too significant to overlook. Fortunately, Pete Buttigieg offers brilliance, youthful energy, and sound policies designed to “win the era.” He would present a stark contrast to Trump in every way. I am aware of the potential weaknesses of Buttigieg’s candidacy. But I think they are far less risky that the weaknesses of the other contenders.