Concerns of a Member When HOA's Self-Management is Poor

The following letter was sent to the County Agency that reviewed and approved a Board's proposed changes to an HOA's governing documents. The names of the parties involved have been removed.

I am non-resident owner of a vacant lot located in an HOA; and I paid for the protections provided by the HOA's original governing documents for infrastructure that included roads, a functional storm water drainage system and the preserved trees on sloped terrain above my lot that maintained slope stability. I purchased my property in September 2003 after which one of the Co-Developers assured me in a letter dated October 2004 that the HOA's governing documents were carefully written to ensure that they would be strictly enforced. Less than 6 months later, a different Co-Developer, submitted a pre-application to the County's Planning and Community Development to amend the HOA's PRD and View Preservation Plan so that a management plan could be implemented for the common areas that would preserve slope stability while preserving views. Initially, the County rejected the Co-Developer's plan because it violated ICC17.03 which prohibited the removal of trees from within the HOA.

On the Transition Date that occurred on July 24th 2005, the control of PRD shifted to the members of the HOA, and with the permission of the first member-elected Board, the former Co-Developer was allowed to petition the County to relax ICC 17.03 so that the desired permanent views could be created in a limited manner for a subset of the HOA's homeowners. The County Hearing Examiner's final report admits that the HOA's CC&R and ICC 17.03 did not permit any alterations to the BHA's open spaces, but the report concluded that there was enough flexibility in the County Code to allow a management plan to be developed "...while at the same time protecting in a limited manner homeowner views...." (Findings of Fact Conclusions of Law and Decision, page 5). The County Hearing Examiner's report concluded that the HOA could implement the proposed amendments to the VPP (aka Attachment 29) subject to the conditions imposed by staff that are "...consistent with Planned Residential Developments as set out in ICC16.17 and ICC 17.03 (ibid., page 5)

Unfortunately, the County approved the Amended VPP proposed by the Co-Developer which was not consistent with ICC16.17 because the primary functions of the HOA's open spaces were never completely identified by the Co-Developer or by the County. That is, according to the design of the HOA's storm water drainage system, the Co-Developers were fully aware that this system was almost entirely dependent on the retention of the BHA's protected trees. In fact, page 16 of the original version of the HOA's Architectural Conditions, Standards and Regulations (ACSR) refers specifically to the preservation of the HOA's "sensitive storm water drainage system" because trees absorb and transpire storm water. On average, a mature deciduous tree can absorb about 30 gallons of storm water per day. Therefore, as a limitation on the number of trees that could be removed annually with replacement by vegetation, slope stability should not have been approved without including the preservation of the BHA's storm water drainage system as the major function of the BHA's trees that had to be preserved in order to ensure compliance with ICC16.17 and ICC11.03.13 (storm water drainage).

The County held two PRD reviews of the proposed changes to the HOA's PRD. Therefore, since ICC 16.17 requires compliance with ICC 11.03.13, the County's staff had two different occasions to request a revised storm water drainage plan for the functional one that would be impaired by the proposed removal of trees. Unfortunately, the County also accepted an unsigned and undated letter typed on HOA stationary (Exhibit 26) as proof that the HOA's members approved of the Co-Developer's and Board's collaborative effort to change the PRD and VPP . This letter was inaccurate because the Board dismissed the voting rights of members, some of whom benefited from the protections provided by the HOA's original governing documents. Therefore, if the HOA's Board had protected the members' voting rights, some of these members would have challenged the proposed amendments in order to ensure that the most important functions of the HOA's forested open spaces would have been preserved. The Board did not disclose the proposed amendments to members before or after the County adopted them. Therefore, the members could not protect themselves against the adverse impacts associated with a storm water drainage system that became dysfunctional in 2010.