Cherrywood HOA members: Please vote NO on the proposed Declarations changes.

A long-time member of the Cherrywood Homeowners Association, I have been a member of the Board of Directors of the HOA since October 2018, and currently serve as Secretary.  

In September 2018, a proposed Package of Declarations of Covenants was presented by the Board to the members of the HOA. If enacted, the Package would radically change the relationship of the HOA to its membership, and would impose significant, unprecedented restrictions on members' ability to use their homes. 

By March 2019, fewer than 35% had voted in favor -- well short of the 60% required for enactment.  Last spring, an unsigned article in the Newsletter of the HOA urged members to vote.  The article gave reasons for passage, but did not include the contrary view. I had offered to present an article setting forth arguments for rejection, but the editor of the Newsletter refused to put it in the Newsletter.  In the months that followed, hardly anyone else voted.  

Now, a year after the Package was presented, the Board has decided to make another effort to secure passage. I again offered to include a dissenting view in Newsletter, but that offer was rejected.  The Fall Newsletter again contains an article urging ratification of the Declarations Package.  Last month,  HOA Board President Lee Kidd suggested including in the Annual Meeting package a Case for Approving the changes, along with my Case for Rejecting the changes.  Lee and I exchanged drafts to make sure that we were both being fair in our arguments, and then presented the proposed documents to the Board.  I very much appreciated Lee's approach. The Board, by a 4-3 vote, however, refused to include the documents in the Annual Meeting package.

No important decision about a major change in a community should be made without a full airing of the pros and cons.  Consequently, I am providing both Lee's piece and my piece for Cherrywood HOA members' consideration.  For the reasons set forth my piece,  I urge my fellow members to vote Against the proposed Declarations changes.  

(I also provide at the end a short piece on The Case for Approving the Parcel E Storm Water Management Pond Transfer Proposal, written by me.  There is unanimity on the Board that this proposal should be approved.)

Any one wishing to discuss this further may contact me at fishbackhoa@gmail.com

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1.  THE CASE FOR APPROVING THE PROPOSED DECLARATIONS CHANGES, by Lee Kidd 

The Amended Declaration of Covenants, Conditions, and Restrictions for the Association are a very modest update to our existing covenants.  The proposed Amended Declaration addresses the following issues affecting the community: creates a prohibition on the installation of telecommunication towers within the Association, prohibits short-term rentals such as Airbnb and accessory apartments, incorporates other restrictions on leasing to protect the interests of all homeowners, and improves the operations of the Association by strengthening the enforcement mechanisms available to the Association by requiring homeowners to pay attorneys’ fees and costs of collection incurred in collection of judgments entered against them in court.  If these changes were made, the HOA would still have no architecture review or other restrictions that most HOAs have.  These changes were prepared by our legal counsel (who specialize in HOA law) based on previous discussions among Association members at our annual meetings.

The County’s recent actions on accessory dwelling units (ADUs) drive home the need for this covenant change.  The details on the approved County regulations may be found at this link: https://www2.montgomerycountymd.gov/mcgportalapps/Press_Detail.aspx?Item_ID=23341&Dept=1

If you check the site, it is clear that under the upcoming County rules (12-31-19) and our current covenants, accessory apartments and mini backyard houses could be built on every single-family house in our HOA, and there is nothing that we can do.  Additionally, the County will rule that the garage and driveway in our HOAs single-family homes will provide off street parking.  While this is great in theory, people will not block cars in the drive and street parking will be a major problem if ADUs are added to the neighborhood.  GOCA unanimously opposed these changes. The only way to prevent them from happening is Cherrywood is to pass our Declarations update.  Some people have expressed concern that the new declarations would preclude having relatives in need move in.  This is not the case.  The only restriction is setting up an ADU.

None of these proposed changes are blocked by law at this time.  It is possible that future changes to County (or state and Federal) law could invalidate the section on telecommunication towers.  If this happens, the higher law will take precedence and no action will be required on our part.

All of the proposed covenant changes benefit the HOA and the accessory apartments change is now vital to our community.  However, it is extremely difficult to pass any change to the HOA Covenants.  For example, the Pond transfer is like giving free money to every person in the HOA.  There are only positives.  After 11 months, only 45% of home owners have voted.  With more than half the needed signature in hand, starting over on the Covenant Changes would not be prudent and would leave us unprotected when the new law takes effect 12-31-19.  The Board (with the exception of one member) strongly urges approval of the Covenant Changes.

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2.  THE CASE FOR REJECTING THE PROPOSED DECLARATIONS CHANGES, by David Fishback

              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.

             The Case for Approving piece also states that the proposed changes were prepared “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. 

            Moreover, a vote FOR would be a vote for the entire Package of changes; we do not have the opportunity to vote for some, but not all. 

            The Package includes significant restrictions on homeowners’ freedom to lease any part of their homes, including requirements that homeowners 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?  

[NOTE:  In arguing that my analysis should not be included in the Annual Meeting materials, one Board member told me that he understood that this information is already required to be submitted to the County Government.  This is simply not the case, as I explained to the Board last spring.   https://davidfishback.blogspot.com/2019/04/cherrywood-homeowners-please-vote-no-on.html (I add it here, since it was unnecessary to include it in my response to the "Case For" piece, since that piece does not did not make this argument.) Here is the text of my explanation:  

"[A]t 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."

(Anyone wishing to see the memorandum, with attachments, that I presented to the Board may contact me at fishbackhoa@gmail.com.)] 

            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.  

[NOTE:  My original version of this analysis stated that a future Board could, under 4(g) even bar extended family members from being tenants.  HOA Board President Lee Kidd felt that this statement was unfair because he could not imagine anyone on the Board ever seeking to do such a thing.  My response was that I was not saying the present Board would ever so act, but that we had no way of knowing what a future Board would do.  Nevertheless, in order to get agreement that would lead the full Board to agree to submission in the Annual Meeting materials, I agreed to change the language.  The Board's refusal frees me from any obligation to not make the point now.]  

            Proposed Section 5, Article IV would bar any “accessory apartments.”  Accessory apartments, attached to existing homes, are heavily regulated by the County, are already legal, and there is little evidence that they have created any problem in Cherrywood.  But 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 only 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. 

            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 could easily be pressured to accede to any interpretation the Board might put on these restrictions.

            The Case for Approving article states that the County Council is currently considering new regulations on accessory dwelling units (ADUs), and that “u]nder the planned County rules and our current covenants, [1] accessory apartments and [2] mini backyard houses could be built on every single-family house in our HOA, and there is nothing that we can do.”  The details on the proposed County regulations may be found at: https://www2.montgomerycountymd.gov/mcgportalapps/Press_Detail.aspx?Item_ID=23341&Dept=1

            But attached accessory apartments in existing homes are already permissible, are heavily-regulated, and have not created any significant problems in Cherrywood. Prohibiting them could, as noted above, create great hardships for some families.  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”). 

            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.  The process and the construction would be quite expensive, and that factor alone suggests that few, if any, homeowners will find it useful to build such houses.  So the idea that suddenly the number of single-family houses in Cherrywood would explode is, in my view, mistaken. In any event, as noted above, the entire Package of Declaration changes is to be voted on “all or nothing.”  Prohibiting accessory apartments in existing homes, invading people’s privacy, and giving a future Board the essentially unfettered “right to promulgate and adopt additional Rules and Regulations affecting Leasing” are too high a price to pay for this other restriction.

            Fewer than 35% of Cherrywood households have voted for the Package.  It takes 60% to approve a change in the Declarations, and for good reason.  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.

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3.  THE CASE FOR APPROVING THE PARCEL E STORM WATER MANAGEMENT POND TRANSFER PROPOSAL

            There is a second issue pending before the HOA membership, and this one has unanimous support of the HOA Board. That is the vote on the Parcel E Storm Water Management Pond Transfer. 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.  Any body of water can be a place where injuries may occur, and, in this litigious society, such injuries may result in lawsuits against the owner.  Fortunately, Montgomery County has agreed to take ownership of and responsibility for this Parcel E.  But, under our Declaration of Covenants, we need a 2/3 positive vote to complete the deal.  

            As of this writing, only 44% of households (265) had voted in favor (with only six voting against).  Every member of the HOA Board believes that it would be in the best interest of the HOA if we are able to complete the transfer.  We urge those who have not yet voted on the Parcel E Pond Transfer to do so now with an affirmative vote so that we may remove the expense and possible liability arising out of HOA ownership of Parcel E. 

(Note: This vote is separate from the vote on the proposed amendments to the Declaration of Covenants.)

Letter to the Gazette, Oct. 17, 2012 ("Lee column sets up a false divide on Civil Marriage Equality")

What to look for as the wide-open job interview for the Democratic Presidential Nomination continues.

The job interview for the Democratic Presidential Nomination is wide open.

All the talk about Joe Biden as the front-runner is misleading. In the last four national polls (Economist/YouGov, Politico/Morning Consult, Harvard-Harris, IBD/TIPP), Biden averages 29%. But under the basic Democratic proportional representation rules for delegate selection, that does not get him anywhere near a majority of the Convention delegates.

But it is also significant that the putative “left” candidates — Elizabeth Warren (19%) and Bernie Sanders (16%) — poll nowhere near a majority. Together, they currently are the choices of only a little more than 1/3 of the Democratic voters.

This could be interpreted to suggest that nearly 2/3 of the voters are not ready to go to the putative left-wing for their nominee, but more than half of that 2/3 are not sold on Biden, either.  Very possibly because they are not convinced that he will hold up over time as the most electable candidate.  This is not an unreasonable concern, given what we have seen recently. Also, there is likely a concern that Biden is insufficiently focused on the future, in contrast to his understandable emphasis on restoring what has been lost since Trump succeeded Obama as President.

Still, it is also important to be aware that the Party rules for apportionment of delegates generally require 15% to get any delegates at all, state by state. As noted above, in an average of the last four national polls, only Biden (29%), Warren (19%), and Sanders (16%) meet the 15% threshold for getting delegates. (Kamala Harris and Pete Buttigieg each average 5%; all the other candidates poll lower, in the aggregate of 11%; undecided are at 13%. ) This could change, as  campaign unfolds. But it is important to note that, at the moment, a Warren/Sanders alliance would get 55% of the delegates, albeit only 35% first-choice support.  This might not bode well for the general election, where the voters who will swing the election mostly lean more to the “center” — whatever that is.

So where does that leave the race?  It seems to me that Biden's ceiling may be where is he now, and he could lose altitude if he cannot demonstrate that he is as sharp as his main competitors.  This will certainly be the case if general election polling continues to show that he is not the only candidate running ahead of Trump.  But then where do the "non-left" voters go? (Note:  I am fully aware that many voters might not be looking closely at the ideological differences between the candidates, given the agreement in the field on so many important matters.)

I doubt they would go to Sanders.  He actually IS a democratic Socialist, if one defines the term as someone who has faith that government programs invariably will result in better results for people, notwithstanding the limitations we all witness in dealing with any bureaucracy, even those presumably responsible to the voters, rather than stockholders.  His unwillingness to concede that Capitalism is often at least a necessary evil puts a hard cap on the support he could get in a general election -- even one against Trump.  And I suspect that a majority of the Democratic electorate does not buy into Sanders' approach, and will not be convinced otherwise in the next months.

They could go to Warren.  Here is why, and how.  First, Warren's diagnosis of the Capitalism's ills in America is tied directly to the inability of the federal government to keep from being held hostage to big business.  Her approach is straight-up New Deal:  That Capitalism is a great economic engine, but if it is not regulated properly, it becomes a runaway train that smashes everything in its path and eventually will run off the rails -- as it did the the era of the Great Depression.  That is why she says, correctly, that she is a Capitalist who understands Capitalism's limitations, and is motivated to protect the people from its excesses, collateral damage, and corruption.

But Warren's problem, at this point at least, is that her adherence to a pretty quick transition to Medicare for All, wiping out the viable option for private insurance plans through employment, is not one that most voters are willing to try.  It is one thing to do what was done with Obamacare, changing the health care system to help those not insured or underinsured, without requiring those who were reasonably satisfied with their private insurance (including so much of the middle class and the unionized work force) to take a chance on a completely new system.  It is quite another to ask the satisfied/reasonably satisfied to give up what they have, in the hope that a new bureaucracy would not mess things up for them. While Warren has indicated that she understands that there may be many ways to get to universal health care, so far I see no real sign that she will back away from the quick and absolute transition.  To the extent that the Biden supporters and other "non-left" voters are focussed on issues (and general election pitfalls), this could be the biggest hurdle for Warren.

Harris has tried to split the difference on health care, but at the last debate, she did not really seem to fully understand the proposal put out by her campaign, and the proposal itself did not really seem to deal with the fundamental problem of gutting Obamacare in favor of a Medicare for All system.  She just seemed to stretch out the transition a bit.  Then there is the question of why Harris has not been able to take advantage of her temporary "breakout" at the first debate.  This is where she has a lot of work to do -- and where she might not be able to fix the perception (and maybe the reality) of her being just another ambitious politician.  When it turned out that her current position on bussing is essentially no different than Biden's, she lost a lot of credibility.  Ditto, when her responses to tough questions amounted to "we should study that," without explaining the pros and cons of different approaches (e.g., voting by the incarcerated).  Ditto, when she makes substantive assertions about her own accomplishments, which are, to put it charitably, exaggerations. as she did recently when she falsely said she had sued Exxon when she was California Attorney General,   While Harris is a talented debater, she has great flaws -- for example, during the Kavanaugh hearings, she implied she had information to hammer Kavanaugh with, dared him to deny the information, but then never came forward with the information.  So far, Harris has not proven herself ready for prime time.

Buttigieg is an entirely different story.  His "Medicare for All Who Want It" does, in fact, bridge the gap between the left and the center.  He provides a direct route to universal health care with the government option without taking away private insurance with which so many are comfortable.  He says this will give the private insurance industry one more chance to improve; and suggests that "if people like me are right," his proposal would be a "glide-path to Medicare for All."  This sort of aggressive action coupled with a sense of humility is refreshing, and I think will be attractive both in the the general election and in actually governing.  There is a reason that so many in the media love to interview him:  Buttigieg consistently answers questions directly and thoughtfully. This strength even shows up on the issue as to which he his most vulnerable:  His failure to "get it done" (his words) regarding policing in South Bend.  Buttigieg does not pretend he has solved problems he has not solved, and his discussions of race consistently show a deep understanding of the nature and scope of the challenges we face as a nation.  He may not be the first choice early on of many African American voters, but if, for example, the impression he has made on Al Sharpton is any indication, he will earn their respect -- and support as the field narrows, and certainly in the general election, should he get the nomination.

Will Buttigieg's strengths translate to votes in the early states?  That is the advantage of having small-population states, where retail politics are possible, early in the process.  He has raised enough money to make his case, and then be ready for Super Tuesday. 

So the job interview continues.  FWIW, if it comes down to Warren or Buttigieg, I think the Party and the Country will have good, sound choices.  And if Warren does win, I hope she will do with Buttigieg what she did with Jay Inslee -- simply appropriate his good ideas.  This job interview is not only to test the candidates, but to test the substantive policy proposals they make.  Would that we had such a process in 2016, with a field of more than two or three candidates.

Finally, I think it would be useful to understand that if we win the war (the election), but do not win the peace (governance after the election), we likely will have yet another "shellacking" (President Obama's phrase) in 2022, just as we did in the first Clinton mid-term in 1994 and the first Obama mid-term in 2010.  That is why we had 16 years of Democrats in the White House, but only four years of ability to get big things done.

We must break that pattern. We need a president who will not only win the election, but will be able to provide aggressive, effective leadership to get a lot done right out of the box -- and will be able to sell it to the electorate.  Obama seemed to think that if he did governance right, the politics would take care of themselves.  On this, he erred.  I suspect Obama would agree.  Given Biden's expressed expectation that he would be able to work across the aisle with Congressional Republicans, as if those politicians were like the winged monkeys at the end of The Wizard of Oz (who became "good" once the Wicked Witch as vanquished), I do not know if Biden really understands that the Congressional Republicans will be as obstructionist as they were in the Obama years.  We need to find out if the candidates are acutely aware of this dynamic.

Resources: Sexual Orientation and Gender Identity Matters in the Montgomery County (MD) Public Schools (2019)

Resources: Sexual Orientation and Gender Identity Matters in the Montgomery County (MD) Public Schools (2019)

            Two and a half years ago, I put together a compendium of links on LGBTQ matters in MCPS.  https://davidfishback.blogspot.com/2017/03/recap-and-resources-sexual-orientation.html

            Progress has continued, and it is time to update the information provided in 2017.

            With respect to curriculum, MCPS enables full discussion of LGBTQ  matters in its secondary school health education classes.  See here and here and here.  Since the 2014-15 school year, health education teachers develop their own curricula, based, in part, on guidance from the American Psychological Association. See here and here.

            In August 2019, the Maryland State Department of Education announced that it was developing guidance that would urge inclusion of LGBTQ matters in history and social studies classes.  MCPS responded that it intended to go further to “include ensuring diverse texts in the new curriculum in English Language Arts, as well as is in students experiences in PE/health, fine arts, world languages, and other content areas.”

https://www.washingtonpost.com/dc-md-va/2019/08/16/maryland-schools-aim-include-lgbt-disability-rights-history-curriculum/

            Discrimination against LGBTQ students has been prohibited for many years, but that policy took on new strength in 2015, when MCPS specifically informed principals of new guidelines regarding gender identity matters.  MCPS has strengthened and updated the guidelines annually, in consultation with many stakeholders. (In February 2017, immediately after the Trump Administration withdrew the Obama Administration Department of Education Guidelines on Gender Identity, MCPS issued a statement, noting that its “guidelines were developed prior to the Obama administration's guidance, which interpreted federal law to prohibit discrimination based on students’ transgender status, and our MCPS guidelines will remain in place notwithstanding the Trump administration's recent actions, which withdraw the Obama administration’s guidance and leave this issue for school districts and states to address.” https://www.montgomeryschoolsmd.org/press/index.aspx?id=5026)

 Provided below are the current pertinent MCPS Policies and Regulations

Guidelines Regarding Student Gender Identity Matters, 2019-20 https://montgomeryschoolsmd.org/uploadedFiles/students/rights/1243.19_GenderIdentityGuidelinesForStudents_ENGLISH.pdf 

Note:  Subsequent to the publication of the most recent iteration of these Guidelines, MCPS sought permission from the Maryland State Department of Education to provide students the option of marking an X, rather than M for male or F for female in their school records. See  https://bethesdamagazine.com/bethesda-beat/schools/mcps-offers-new-option-for-classifying-student-gender/)

Employee Code of Conduct, 2019-20

https://www.montgomeryschoolsmd.org/uploadedFiles/staff/Employee_Code_of_Conduct/0002%2020_EmployeeCodeofConduct_BOOKLET_ENG_8%205x11.pdf

A Student’s Guide to Rights and Responsibilities, 2019-20

https://montgomeryschoolsmd.org/uploadedFiles/students/rights/1318%2019_StudentRightsAndResponsibilities_Web.pdf

Student Code of Conduct, 2019-20

https://montgomeryschoolsmd.org/uploadedFiles/students/rights/1308.19_2019_2020_STUDENT_Code%20of%20Conduct_Web.pdf

MCPS Nondiscrimination Statement (July 2019)

https://www.montgomeryschoolsmd.org/uploadedFiles/info/nondiscrimination/NondiscriminationStatement%20ENGLISH%202019-2020.pdf

MCPS Regulation JFA-RA (Student Rights and Responsibilities) (last revised December 4, 2018)

https://montgomeryschoolsmd.org/departments/policy/pdf/jfara.pdf

MCPS Regulation RGT-RA (User Responsibilities for Computer Systems,

Electronic Information, and Network Security) (last revised July 2012)

https://www.montgomeryschoolsmd.org/departments/policy/pdf/igtra.pdf

MCPS Regulation JHF-RA (Bullying, Harassment, or Intimidation) (last revised June 26, 2018)

https://www.montgomeryschoolsmd.org/departments/policy/pdf/jhfra.pdf

MCPS Form 230-35 (Bullying, Harassment, or Intimidation Reporting Form) (May 2019)

https://www.montgomeryschoolsmd.org/departments/forms/pdf/230-35.pdf

 (This form is also available in Spanish, French, Vietnamese, Korean, Chinese and Amharic: https://www.montgomeryschoolsmd.org/departments/forms/detail.aspx?formID=40&formNumber=230-35&catID=1&subCatId=44)

MARYLAND STATE DEPARTMENT OF EDUCATION GUIDELINES (October 2015)

PROVIDING SAFE SPACES FOR TRANSGENDER AND GENDER NON-CONFORMING YOUTH: GUIDELINES FOR GENDER IDENTITY NON-DISCRIMINATION: A guide to laws, regulations, and best practices for use in schools.

http://marylandpublicschools.org/about/Documents/DSFSS/SSSP/ProvidingSafeSpacesTransgendergenderNonConformingYouth012016.pdf