On December 13, I received the Winter 2019 edition of the Cherrywood Chronicle, the Newsletter
sent to all members of the Cherrywood Homeowners Association by the Cherrywood
HOA Board of Directors. I have been Secretary of the Board since last
winter, but all material published in the Newsletter is controlled by the Board
Member who actually handles the publication. The Winter 2019 edition contains
items which suggest approval of the
September 2018 Declarations Package, but ignores the fact that there is a
dissenting view.
The “Words from the President” article on the front page “urges
all who have not voted to help us close these issues.” Unfortunately, HOA Board President Lee Kidd forgot to mention that the link he provided (https://tinyurl.com/cherrywoodhoa) includes two important documents: One written by him, supporting the Declaration Amendment Package (“ForProposedDeclarationChanges”) and one, written by me, opposing the Package (“Against Proposed Declaration Changes”). It is noteworthy that this inclusion of a piece opposing the Declarations Package proposal is the first time any HOA publication has provided any discussion of arguments against ratification, notwithstanding my previous efforts on my part to include the other side. [1]
So for many members, this may be the first opportunity they may have to see the Pros and Cons of the proposal, so they may make informed decisions as to whether approval of the Declaration is in the best interest of the community. I believe that it is not.
For members' convenience, the Pro and Con pieces may also be found here and here.
Please note that members may change the votes they have already cast – indeed, some have already done so. That ballot may be found at https://tinyurl.com/cherrywoodhoa at “DeclarationConsent.” I suggest voting DO NOT CONSENT.
Lee's piece focuses on the fear of proliferation of Accessory Dwelling Units. My piece makes the case why that fear is unwarranted, and why other problems with the Declaration Package are so significant that we should not enact the Package.
So for many members, this may be the first opportunity they may have to see the Pros and Cons of the proposal, so they may make informed decisions as to whether approval of the Declaration is in the best interest of the community. I believe that it is not.
For members' convenience, the Pro and Con pieces may also be found here and here.
Please note that members may change the votes they have already cast – indeed, some have already done so. That ballot may be found at https://tinyurl.com/cherrywoodhoa at “DeclarationConsent.” I suggest voting DO NOT CONSENT.
Lee's piece focuses on the fear of proliferation of Accessory Dwelling Units. My piece makes the case why that fear is unwarranted, and why other problems with the Declaration Package are so significant that we should not enact the Package.
For the reasons summarized below and set forth more specifically
in the Case for Rejecting piece here, I urge members to vote AGAINST the Package and to
reconsider any votes in favor they may have already cast before they had seen the
arguments against the Package.
************************
In September 2018, the HOA counsel offered a package of
Declaration Amendments that would radically change the relationship of the HOA
to the membership. The explanatory language provided by counsel was dense
and, in many respects, hard to understand. The Package is all-or-nothing
-- in other words it must be accepted in its entirety or not at all. Much has
been said about the proposed prohibitions of both detached and attached
Accessory Dwelling Units, but the proponents of the Package have not addressed
the very serious problems raised by the Leasing changes, which would, for the
first time, significantly restrict the ability of homeowners to have the
freedom to do what they want with their own property, and give the Board
additional powers which would, in effect, turn the HOA into an form of
"sub-government" -- something we have never had in Cherrywood.
While I provide detail in the links provided here, here is a
summary of the problem, and my response to those who support approval of the
Declaration package:
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), including invasions of privacy and unreasonable restrictions on homeowners' ability to use their own homes.
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 Approving presentation does not address some of the most
significant proposed changes. Rather, it just says 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. The Case For Rejecting presentation sets forth the serious problems that would be created by the leasing provisions.
Finally,
the fear that failure to pass the Package would lead to a “doubling” of the
population density of Cherrywood is unwarranted. Please look at my
analysis of the ADU situation before assuming that it is necessary to act now,
notwithstanding all the other problems with the Package, including the
fundamental change of the relationship between the HOA and its members.
There is another factor I urge members to consider – an issue
which Lee raised subsequent to the writing of the Pro and Con articles that are now on the
tinyurl. In the course of exchanging drafts, Lee recognized that the
leasing restrictions could terribly impact "snowbirds," older homeowners
who might want to spend the cold autumn and winter months in warmer
climates. He opined that the Board could accommodate those concerns, but
I pointed out that other provisions of the proposed amended Declaration made
that impossible. Lee took the view that if I was right about the inability
of the Board to lawfully make accommodations, then the Board should withdraw
the all-or-nothing package altogether. The letter Lee presented at the
most recent Board meeting, suggesting that we ask the HOA counsel whether my concerns were correct, may be found here. This draft letter, prepared jointly by Lee and me,
fairly describes our positions, including my explanation as to why the Board would not have the authority to grant waivers or other accommodations. At its December 12 meeting, the Board decided to contact counsel by phone to secure
advice. (Since Board meetings are open to all members of the HOA, none of this
is private or proprietary information of the
Board itself.)
And even if the amended Declaration would allow the Board to make
accommodations for unanticipated or hardship situations (something questionable,
at best, given the language of the proposed Package), this would highlight the
fundamental change that the amended Declaration would bring: For the first time, the Board – not
individual members – would be making decisions as to how people could use their
property. For the most part, the Board
is a self-perpetuating group, since very few people volunteer to run for the
Board. And, given the proxies sent out before most Board meetings, it is
impossible for the small percentage of members who attend Annual Meetings to
challenge any slate presented by the Board.
Making the Board a form of sub-government could create fissures within
the neighborhood that we have never had in the past.
Nothing distributed by the HOA since the proposed amended
Declaration was presented to the membership 15 months ago has ever recognized
or grappled with this defect, which at least several Board members believe
would be cause to withdraw the Declaration Amendment votes altogether. For the front page Newsletter article to urge that
members vote now to "help us close [the] issue" without noting this
very serious problem and without noting the Board's effort to see if it is
fixable if the Declaration amendments are approved, is unfortunate.
So I urge all members to consider this point and to read the Case for Approving and the Case
for Rejecting, links for which I again provide here and here, as well as the December 12 draft letter (linked here), so that they can make informed decisions about the need
for the all-or-nothing Declaration Package, and whether any benefit that might
accrue is worth all the harm that could and would be created.
David Fishback, Secretary
Cherrywood Homeowners Association Board of Directors
fishbackhoa@gmail.com
[1] The rejection of my earlier efforts to present the arguments against ratification through formal HOA mechanisms led to my writing of these two blogposts, which may or
may not have been read by very many members. See https://davidfishback.blogspot.com/2019/04/cherrywood-homeowners-please-vote-no-on.html
and https://davidfishback.blogspot.com/2019/09/cherrywood-hoa-members-please-vote-no.html
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