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.)