HOA response to appeal: more than 90 days from date of appeal letter.

[kharvel]

What is the name of your state (only U.S. law)? Washington State

Hello,

Here's the back story: I live in a single-family residential home in a community governed by a HOA. The HOA is called Renton Liberty Ridge HOA (http://www.rentonlibertyridge.com). You can see the CC&R and architectural approval committee (AAC) documentation there. Anyway, I studied the CC&R and AAC and did not see any restrictions or prohibitions on artificial grass so I proceeded to install the artificial grass in my front yard without securing prior approval from the HOA Board AAC. The HOA later declared the artificial grass to be in conflict with the AAC guidelines and directed me to remove the artificial grass. They specifically stated that the artificial grass was "too green" and "the color of the turf does not have a consistent look and stands out" (as an aside, does Washington State prohibit selective enforcement of HOA rules on any basis?).

I appealed the HOA decision to the board on 7/6/2012. I did not get a response from the board until 10/22/2012. According to Section 9(b) of the CC&R, the HOA board was supposed to schedule a hearing on the appeal not more than 45 days after the receipt of my written notice. Furthermore, the board was supposed to provide a written notice to me of the time and location of the appeals hearing. Section 9(b) also gives more information what the board and the appellant are supposed to do prior to the hearing.

The letter dated 10/22/2012 specifically said the following: "The board shall serve as an appellate panel to review decisions of the ACC, which it did in your case". So it would appear that the appeals hearing took place in the past 90 days without my knowledge or without any notice to me.

Regardless of the merits of my appeals, can I request the HOA to drop the decision on the basis of the HOA's failure to provide written notice of a hearing or to schedule a hearing? Thank you.

 

[Dave1952]

You seem to be basing your complaint on the board failing to comply with section 9(b) of the CCRs. I looked at the CCRs on the HOA's web-site and the posted CCRs are in the format of Article and Section. Please help us by using that format. I was unable to find section 9(b).
The ACC seems to have broad powers over the aesthetic features of this sub-division. They encourage folks to ask questions and seek approval before doing anything. You viewed that site but ignored that advice.
The Board of Directors, who handle ACC appeals, did discuss ACC business at both their July and August meetings. In each case they asked the management company to write a letter including the appropriate CCR sections. This sounds like the appeals process. They include the street address. One of these may have been your appeal.
I'd advise discussing the lawn issue with the ACC. Find out if another color is acceptable to them. Get approval in writing before you begin this project.

 

[Dave1952]

Found Section 9(b) in the Rules and Regulations Document not the CCR. Section 9 covers appeals. It does sound as if the Board failed to notify you in writing of the date and time of your appeal. In reading through the appeals section it is clear that you should be informed and may attend this appeal. It's expected that you will make oral arguments.The Board failed to do these things.
You may certainly ask that the appeal be granted because of these lapses but I doubt they will do that. I'm thinking that they'll redo the appeal process for your case.
I don't know whether they held your appeal in a timely fashion. The Board dealt with AAC appeals at their regular meetings in July and August. Look at the posted minutes. They do not have a specific time to notify you of the Board's decision and you did receive a letter eventually.

 

[kharvel]

Dave1952,

Thank you for taking the time to look deeply into my case. I really appreciate your due diligence in this matter. I understand that I _might_ have avoided this issue by submitting my proposal to the ACC and obtaining their approval before installing but from the sounds of it, I doubt I would have gotten approval either way and in any case, I never expected the HOA would have any issues with the artificial grass precisely because they had a lot of issues with the natural grass that I had on my front yard.

The artificial grass was in response to numerous letters and notices from the HOA about the natural lawn in my front yard ("the grass is too yellow. water it!" "the grass has too many weeds. weed it!" "the grass is XXXX. do YYYY!", etc.). I also explained the HOA in my request for appeal letter that I traveled often and for long periods and could not be present to take care of all of the grass maintenance issues. So I installed the artificial grass to placate them and get them off my back. Now the same people are telling me that the grass is "too green" and looks "too nice". I don't know how to deal with this type of flip-flopping.

And now this lapse in following the rules on the part of the HOA board. The HOA board discussed this matter in the July 25, 2012 meeting and directed Bert (the HOA manager) to write a response letter. There was no further mention of this matter in the August and September 2012 board meetings. The response letter from Bert did not come until after 3 month after the July board meeting and no notice was given to me as per the rules. You said that even if I asked the appeal to be granted on basis of the lapset, it probably would not be granted and the HOA would just re-do the appeals. Can they legally do that? Suppose I took the HOA to the court. Would I be able to win on the lapse argument alone?

 

[festival]

I doubt that you can win on the lapse argument, since the HOA has not started enforcement or penalties. The lapse of time and the lack of (notice of) a hearing would be a defense against fines. The HOA can now simply give you a hearing.

I should mention that I am in condo administration, and not a lawyer, so this is just my perspective.

A defense of the artificial grass at a hearing (or at arbitration or in court) is that their decision does not pass a legal "reasonableness" test, since your lawn looks great. The HOA will counter with the need for uniformity. I give the edge to the uniformity argument, which is reasonable (unless your neighborhood is not very uniform). You can also bring up the selective enforcement. Ask that your artificial grass be grandfathered, since there are no rules against it, they demanded a change, and since it cost a lot.

 

[Dave1952]

So, the appeal was within 45 days and they did notify you in writing of the Board's ruling. They did not notify you before the Board meeting so that you could attend and offer arguments in favor of your appeal. That's the only screw-up but it's a major one. If you choose to sue I can't predict what a judge will decide. Since this artificial grass thing was probably expensive and you now face seeding or sodding on top of this it might not hurt to buy an hour of lawyer advice.
Ask for the appeal to be granted since they screwed up. Rehearse the arguments that you planned to offer at the appeal since I expect you'll have a chance to make these arguments at a Board meeting.
Like Festival I think that your artificial lawn will not look much like your neighbor's lawns during the Winter months.

 

[kharvel]

I doubt that you can win on the lapse argument, since the HOA has not started enforcement or penalties. The lapse of time and the lack of (notice of) a hearing would be a defense against fines. The HOA can now simply give you a hearing.

I should mention that I am in condo administration, and not a lawyer, so this is just my perspective.

A defense of the artificial grass at a hearing (or at arbitration or in court) is that their decision does not pass a legal "reasonableness" test, since your lawn looks great. The HOA will counter with the need for uniformity. I give the edge to the uniformity argument, which is reasonable (unless your neighborhood is not very uniform). You can also bring up the selective enforcement. Ask that your artificial grass be grandfathered, since there are no rules against it, they demanded a change, and since it cost a lot.

Festival, thank you very much for your response. You bring up an excellent point about uniformity. Between June and September, the neighborhood was absolutely NOT uniform in terms of the front lawns. Some front lawns are completely brown. Some were yellowish. Some were deep green like my artificial turf. Some were green/yellow. In fact, if you were to drive by my house and saw my lawn, you would think that it is a very well-maintained lawn and you wouldn't realize it was artificial without a closer inspection. I did mention this lack of neighborhood uniformity in my appeals letter as well as all the letters and notices I received about my lawn and the October response simply stated "Over the course of the summer months we have sent out well over two hundred letters coving issues from landscape maintenance, garbage bins to painting trims ************** Unfortunately, the color of the turf does not have a consistent look and stands out". That was their defense to the non-uniformity of the neighborhood lawn. The very fact that most lawns in the neighborhood were NOT consistent is somehow a defense for saying my lawn did not have a consistent look and stands out!

Thank you for the suggestion for the grandfathering. In my appeals letter, I asked them to specifically state the rule and exact wording in the CC&R or ACC that my artificial lawn conflicts with. All they could come up with was Section 7: "nuisances, no noxious or undesirable thing, activity or use of ....."

I think the combination of the lapse and their inconsistent/illogical defense of their ruling should be in my favor if this would ever reach the court but I wanted opinions of the participants in this forum first. Thank you for providing your opinion and input and further commentary would be welcome from you and Dave1952.

 

[kharvel]

Update

Hello all,

Here is an update on the situation. The HOA sent me a third letter which is quoted below. It is now threatening to fine me retroactively if I do not submit a plan for replacing the artificial grass. This HOA letter was in response to the letter I sent to them a couple of months ago outlining why/how the HOA did not follow procedures and should grandfather the artificial grass. I am also quoting that letter here.

The HOA's position is that the first meeting (June 2012) in which we first requested approval for the artificial grass was in and of itself the appeal meeting. They claimed that the request was in and of itself an appeal and did not allow for a "second" appeal. I do not believe this is the case and I am thinking of taking the HOA to court and seek injunctive relief. I am not sure I have a strong case in this matter and I don't know how difficult it is to file a complaint in King County, Washington over this matter. Can someone provide some advice on the best approach I should take in resolving this matter? As always, your help is appreciated.

LETTER SENT TO HOA IN AUGUST 2013

Dear Mr. [HOA MANAGER],

I was surprised to receive your letter dated August 2, 2013 as I had assumed that the artificial grass matter was resolved and my appeal of the denial of the ACC request was granted by default, notwithstanding the HOA appeal decision letter dated October 22, 2012.

I believe that my appeal of the ACC denial was granted by default because the Board violated or failed to follow the procedures outlined in Sections 9(b) and 9(e) of the Liberty Ridge Rules and Regulations concerning appeals of Board decisions on ACC violations. I had sent the appeal notice letter dated July 6, 2012 and the Board
a) failed to provide any written notice of any appeal hearing,
b) failed to schedule an appeal hearing at a time and date that was mutually convenient,
c) made the appeal decision without following the rules in 9(b) and 9(e) (by denying me the opportunity to present my appeal in person in an appeal hearing), and
d) communicated the appeal decision to me more than 90 days after the date of my appeal letter.

Furthermore, in the months following the HOA letter dated October 22, 2012, I have noticed that there continues to be is a severe lack of uniformity in the front lawns throughout the entire community. There are many properties in the community with front lawns that have been brown, yellow, greenish-yellow, and other combinations thereof and that have exhibited such non-uniformity for months. This would indicate that the HOA has been tolerating non-uniformity of lawns in the community and permitting turfs that do not have “a consistent look” and that stand out. On that basis, it would appear that the Board’s position with regards to my front lawn is unreasonable and selective, especially since the Board has determined the artificial turf to be “noxious and undesirable” even though any reasonable person would come to the opposite conclusion on the basis of the first sentences of Article Seven, Sections Two and Three of the CC&R.

I would like to suggest that the best way forward would be to grandfather the artificial grass on my property and close this matter. I urge the Board to take this reasonable approach in light of my good-faith intentions behind the installation of the artificial turf (as outlined in my July 6 appeal letter) and the fact that the green lawn maintains property values far better than other homes that have yellow or brown lawns.

RESPONSE LETTER RECEIVED FROM HOA

Your letter dated August 13, 2013 regarding your decision to place artificial turf on your property being granted by default because the Board failed to follow procedures does not reflect the fact the Board denied your appeal on June 27, 2012. Your accusations that the Board violated or failed to follow procedures is not germaine because you were clearly denied your appeal, outlined in my letter to you dated July 6, 2012, well within the 90 day response timeframe. That should have been the end of discussions. There is nothing in the CC&Rs that speaks to being granted two appeals.

You responded to the July 6, 2012 letter by stating that "all the necessary information for the Board to make the correct decision'" was not provided, and requested that we "reveal the exact rule and wording that I may be in conflict with". You were told at the meeting you attended on June 27, 2012 that you needed Board approval to install artificial turf. We also made it very clear in our letter dated October 22, 2012 that you needed Board approval to install artificial turf. We also made it very clear in our letter dated October 22, 2012 that you were denied your appeal per Article 10 of the CC&Rs regarding your request to keep your artificial grass; you were asked to develop a plan for removal of the turf and install a landscape that is acceptable to the Association and present it to the Landscape Committee for review and approval. You chose to ignore this request.

If you fail to provide a plan to remove the artificial grass, you will be fined. This will start 10 day from the date of thi letter. I am sure you realize, Mr.XXXXXXXX, that Board could, instead, chose to fine you starting from the original Board denial of your appeal as of June 27, 2012. Without your submittal of plan to remove our artificial turf, the Board could take this action. Thank you for your time and attention regarding this matter

 

[Dave1952]

It's been sometime but as I recall you failed to get the necessary approval for artificial turf. The HOA manager sent you a letter urging you to remove this turf. You filed an appeal. The board failed to tell you of the date when the appeal would be discussed though you had the right and expectation of orally presenting your case. Your appeal was denied. You were notified of this in Oct.
Ok, so what happened? Did you request an second appeal, attend, and present your case? Your latest post suggests that you've done nothing based on the assumption that your appeal was "granted by default". I've no idea what that means. You know that you lost the first appeal, what was granted by default and when?