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Board to prescribe rules for a committee to adopt


Lauriemcg

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Our HOA CC&Rs set out the authorization for an Architectural Control Committee.  There is only one statement in it where the Board can give direction to the committee.  Otherwise the committee is authorized to have the primary responsibility to interpret and enforce the rules and regs set out in the CC&Rs.  There is one point where the Board can give direction I believe.  It states: "The Architectural Control Committee shall adopt such reasonable and uniform rules of architectural control as the Board of Directors may prescribe , including, but not necessarily limited to the following:... " where it lists a couple of bullets about new structures and outbuildings.

 

I would like the Board to be proactive (I'm President on the Board) in setting some direction for some of the rules they should follow. One of them dealing with fencing (there are some others).  What I'd like to have set out as a rule is something like:

" 1) All lots shall maintain external fencing in good condition and of the style prescribed in SECTION J of Article II of DCC&R. If variance is sought to install fencing of a different style it shall be of the following specifications: [specs for 1 or to options to go here]

  2) Fencing along the parameter of the storm pond shall not include a gate into to the pond tract."

 

Procedurally, how would I go about presenting that at our next Board meeting?  Would it be a motion to direct the ACC committee to adopt the rule?  And if the Board passes that motion, is it then a done deal the ACC must (shall) adopt it or will they have the option of deciding to adopt it?

 

Thanks :)

Laurie

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If the committee is created by the Board, then it is subordinate to the Board and reports back to the Board; the Board can set rules for it.  However, if the committee is a standing committee of the organization (as a whole) or even a special committee of the organization, then it reports back to the organization (not to the Board, unless there is a provision in the bylaws for this); it would be the organization which can specify rules regarding it.  

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If the committee is created by the Board, then it is subordinate to the Board and reports back to the Board; the Board can set rules for it.  However, if the committee is a standing committee of the organization (as a whole) or even a special committee of the organization, then it reports back to the organization (not to the Board, unless there is a provision in the bylaws for this); it would be the organization which can specify rules regarding it.  

 

Oh, interesting.  So, if the ACC is defined in the DCC&Rs then it is accountable to the HOA membership not the Board?  And if so, where it states in the DCC&Rs that they committee shall adopt such rules from the Board of Directors, that would likely be the only guidence or control the Board has of that committee.

 

One concern that brings up (and this is likely a different thread then so I'll repost as such) would be the indemnification the ACC has written in to the DCC&Rs.  Hmmm..

 

Back to my question then, the Board can provide direction to the ACC on rules per the DCC&Rs

 

"The Architectural Control Committee shall adopt such reasonable and uniform rules of architectural control as the Board of Directors may prescribe , including, but not necessarily limited to the following:... "

, how is that done?

 

Thanks ;)

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Would it be a motion to direct the ACC committee to adopt the rule? And if the Board passes that motion, is it then a done deal the ACC must (shall) adopt it or will they have the option of deciding to adopt it?

It would seem to me that under your bylaws, the board would indeed adopt a motion directing the ACC to adopt such a rule, and the ACC must then adopt the rule itself. This seems like a very roundabout way of doing things, but that's what your bylaws say. If the ACC refuses to follow the board's orders in this matter, then the solution will be to replace some or all members of the ACC.

Ultimately, of course, it is up to the organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

If the committee is created by the Board, then it is subordinate to the Board and reports back to the Board; the Board can set rules for it. However, if the committee is a standing committee of the organization (as a whole) or even a special committee of the organization, then it reports back to the organization (not to the Board, unless there is a provision in the bylaws for this); it would be the organization which can specify rules regarding it.

The original post states that the bylaws specifically provide that the board may instruct the ACC to adopt rules on certain subjects.

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It would seem to me that under your bylaws, the board would indeed adopt a motion directing the ACC to adopt such a rule, and the ACC must then adopt the rule itself. This seems like a very roundabout way of doing things, but that's what your bylaws say. If the ACC refuses to follow the board's orders in this matter, then the solution will be to replace some or all members of the ACC.

. . . . . .

The original post states that the bylaws specifically provide that the board may instruct the ACC to adopt rules on certain subjects.

That is what I was about to say in response to Transpower's post.  In fact, I had already scrolled up and copied this statement from Laurie's original post:  "The Architectural Control Committee shall adopt such reasonable and uniform rules of architectural control as the Board of Directors may prescribe. . . ."

 

Regardless of which body created the committee.... and that point isn't at all clear from Laurie's post....  it is clear that the board may direct the ACC to adopt certain rules.

 

Edited to add:  The bylaws authorize the creation of an ACC committee, but Laurie's post doesn't say which body actually created it.  "Our HOA CC&Rs set out the authorization for an Architectural Control Committee."

 

It may well be that it is the board which created, or will create, this committee.  We don't know.

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The cc&r, which has an article specifically for the ACC, was put in place while the developer still managed the hoa. Members took over the hoa about a year and a half ago. It is in those ccrs where it states the board may prescribe rules (see #1) for the ACC.

sorry for curt reply... I'm working from my phone keybard just now...

Laurie

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Back to my laptop, much easier to type :)

 

So here is the Article from the DCC&Rs, it might help clarify your questions. I've removed names and the bold is my highlight of the section I have a question about.

 

So far what I think I'm hearing is that the ACC is not a Board committee, but rather is a separate committee under the authority of the membership of the association - Laurie

 

DCC&R

 

ARTICLE III ARCHITECTURAL CONTROL COMMITTEE

No building, fence, wall or other structure shall be commenced, erected or maintained upon the properites, nor shall any exterior addition to or change or alteration therein until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same have been submitted to and approved in writing as to the harmony of external design and location in relation to surrounding structures and topography by the Architectural Control Committee composed of two (2) or more representatives appointed by the Board of Directors of the Association.

The initial Architectural Control Committee shall be composed of the following: [names of builders removed]

Notwithstanding any of the above provisions to the contrary, it is intended that the initial Architectural Control Committee shall remain in office until at least January 1, 2010.

After this date the authority of the Architectural Control Committee shall automatically transfer to the [name of HOA], a non-profit corporation, for the designation of such new committee members as provided herein above by the Board of Directors of said corporation.

The Architectural Control Committee shall have the primary responsibility of interpreting and enforcing the rules and regulations of building and improvements subject to the procedures hereinafter set forth.  The Architectural Control Committee shall adopt such reasonable and uniform rules of architectural control as the Board of Directors may prescribe, including, but not necessarily limited to the following:

A             No outbuilding or structure of any kind may be started on a platted residential lot before construction of a permanent residence.

B.            No construction of a dwelling may be started on a platted residential lot without first obtaining:

                *Written approval from the Board of Directors of the Association or the Architectural Control Committee designated by it pursuant to these covenants.

                *Each single family residence on a platted residential lot shall contain a minimum floor area of 1150 square feet for one story, exclusive of open decks (covered or uncovered), garages, covered carports, sheds or outbuildings and 1200 square feet for two stores, unless otherwise approved by the Architectural Control Committee.

The majority of the Architectural Control Committee may designate a representative to act for it.  At any time, the then record owners of a majority of the lots shall have the power through a duly recorded written instrument to change the membership of the committee or to withdraw from the committee or restore it to any of its power and duties.

The committee’s approval or disapproval as required in these covenants shall be in writing.  The Board of Directors of the Association or the Architectural Control Committee designated by it shall determine whether any given use of a platted residential lot unreasonably interferes with an abutting owner’s use of his property, and such determination shall be conclusive.  In the event the committee, or its designated representative, fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted, approval will automatically be granted.  Approval by the Architectural Control Committee does not constitute authorization to proceed with any activities that may require conformance with Thurston County procedures and regulations.

The Association will hold the committee members harmless from any actions taken (or actions not taken) under any section of this declaration.  By purchasing a lot in [subdivision name], the owners agree that, to the extent permitted by law, no member of the committee shall have any liability to the owners for any actions taken or any actions not taken while acting as the Architectural Control Committee under this declaration.

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Well, then, Lauriemcg, your board prescribes the rules for the committee....

 

Great.  Ok then.  So I can put forward a motion at the next Board meeting for the committee to adopt the following rules:

 

" 1) All lots shall maintain external fencing in good condition and of the style prescribed in SECTION J of Article II of DCC&R. If variance is sought to install fencing of a different style it shall be of the following specifications: [specs for 1 or to options to go here]

  2) Fencing along the parameter of the storm pond shall not include a gate into to the pond tract."

 

And then the committee should meet to adopt those rules?  Or do they become the rules the committee must "interpret and enforce" without their adoption by the committee?

 

I'm being a bit dogged on this because there has been questions brought up about just what the Board can and cannot do in regards to the ACC and want to make sure I'm as clear as possible when the questions come up again.

 

Thanks ;)

Laurie

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Great.  Ok then.  So I can put forward a motion at the next Board meeting for the committee to adopt the following rules:

 

" 1) All lots shall maintain external fencing in good condition and of the style prescribed in SECTION J of Article II of DCC&R. If variance is sought to install fencing of a different style it shall be of the following specifications: [specs for 1 or to options to go here]

  2) Fencing along the parameter of the storm pond shall not include a gate into to the pond tract."

 

And then the committee should meet to adopt those rules?  Or do they become the rules the committee must "interpret and enforce" without their adoption by the committee?

 

I'm being a bit dogged on this because there has been questions brought up about just what the Board can and cannot do in regards to the ACC and want to make sure I'm as clear as possible when the questions come up again.

 

Based on what your bylaws actually say, it seems to me that the board directs the committee to adopt the rules, and the committee must then meet to adopt the rules. The board does not get to adopt the rules directly. This is a very odd way of doing things, but it's what your bylaws say.

 

If the committee refuses to adopt the rules, the solution is to replace some or all of the committee members with people who can follow instructions.

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Based on what your bylaws actually say, it seems to me that the board directs the committee to adopt the rules, and the committee must then meet to adopt the rules. The board does not get to adopt the rules directly. This is a very odd way of doing things, but it's what your bylaws say.

 

If the committee refuses to adopt the rules, the solution is to replace some or all of the committee members with people who can follow instructions.

 

Ok, this has been very helpful, all your questions and comments.  Gives me a better understanding of how to go about the next meeting where we discuss this.

 

Thanks ;)

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