I receive this letter from my HOA which have kept me thinking how I should response to it. My retired parents who are staying with me had decided to terraced the slope in our backyard for vegetables. I have two neighbors, one who doesn't like the idea and claim that we are intruding their privacy by actively maintaining the garden while the other neighbor saw what we did and added planters on the hill side for planting vegetables. Both of them signed of the plan during our initial plan submission back in December.

The plan was submitted back in December 2011 and the management get back to be 180 days later where as by rule they should get back to me 45 days after I submit the plan. I suppose the management go after me on the active pursue of my neighbor to remove the vegetable gardens.

This meant a lot to them and I hate to see that they have to re-slope the area because gardening has kept them occupied most of the day. How should I deal with my HOA?

I uploaded the letter and the letter and section regarding slope control from the CCR and be found here:
https://picasaweb.google.com/PhillipLaw/July202012?authuser=0&authkey=Gv1sRgCJy6wbDagOOlmwE&feat=directlink

Thanks

I think you need to look at more than the one paragraph from the bylaws you posted. The letter implies the bylaws require that are have ornamental landscaping only. But the paragraph you posted only discusses drainage.

Is your actual usage consistent with the plan you submitted in December? Or some "revised plan" as mentioned in the letter? The letter says it is not. If they only got back to you after 180 days, that sounds like just last month. Do the bylaws say if you submit a plan and its not rejected in 45 days then its automatically approved? Did you just move forward with the changes assuming you had approval? The letter implies that some plan was approved, but what you acutally did is not consistent with the plan and is not consistent with "governing documents".

Unfortunately, if thats the case you will likely have little basis for fighting with the HOA. HOAs do have the ability to dictate how you use your property. That's why I've very, very reluctant to buy any property that's covered by an HOA. I've lived in a neighborhood where many of the residents wanted and HOA but we didn't have one. And I did thing (planting fruit trees and putting in a kids play tower) the neighbors didn't like. But they couldn't prevent me. You don't have that luxury.

Have you reviewed these "governing documents" and they bylaws? Are you our of conformance?

HOA's are a legal disaster that Lawyer's feed on, that is why they exist the way they are written. Enforcement is another thing, at least here there is a third party management company vs. a bunch of Yahoo neighbor's "BOD", but regardless the Management Company probably does not understand the laws surround this or how to enforce them. I've have read them in state from being in litigation with a BOD over a approved shed and driveway I deviated from and parked trailer that became a power struggle, next one I bought into I became President…Can't beat em join em…haha!

I believe they quoted an article out of the Declaration or not By-Laws, and it sounds like there was a deviation to the original bought off plan that encroaches on the master drainage plan. Most of these member plans I have seen are approved by a "HOA Design Committee" that has a common landscape plan, not neighbors although part of that process may involve directly affect neighbor's opinions.

Listen to this advice close, you don't want to get into litigation with these yahoo's, although there probably are little funds available for litigation it will drag on and on for all parties involved starting next w/a letter from their attorney, then you will have to hire one to respond and possible go to court. Only one that wins are the attorneys, not the HOA and your house value since that is money that could have been better spent. I'd submit a new plan or go back to the original, create peace, or it's going to cost.

Other thing you can look at if you want to fight is usually a majority vote overides the BOD check your by-laws. You would have to go door-to-door show pics, explain, etc. I tried that but found alot of people don't want to get involved too afraid of being picked on.

Good luck!

On our plan we submitted call out vegetable to be planted in between fruit tree on each level of the terrace. And both of my neighbor knew that before they signed off on the plan. The plan wasn't completely off like the letter had mentioned. They have not got back to me and I doubt they even come in for an inspection other than mere report by my neighbor. I did not specify any specific measurement on the drawing and they were basing their claim from the neighbor. By rules when they carry out an inspection they must let me first because they cannot just come into my own property for an inspection right without approval.

I've further look thru the documentation under the Submittal section and found the following clause when one submit an architectural plan:

"If the application is deemed complete (which it was at the time), plans bearing neighbors' approval signatures will either be approved or disapproved within forty-five days of receipt by the Architectural Committee."

In additional section on Appeals:
"In the event plans and specifications submitted to Architectural Committee are disapproved, the party or parties making such submissions may appeal in writing to the Board. The written request must be received by the Board not more than thirty (30) days following the final decision of the Architectural Committee. Within forty-five (45) days following receipt of the request for appeal, the Board shall render its decision, which decision shall be final. The failure of the Board to render a decision within said forty-five (45 day period shall be deemed a decision in favor of the appellant."

Primary questions:
Can I held the HOA liable for not getting back to me within the 45 days after the submittal plans? The failure to conduct the guideline as stated in the document during the first 45 days period would somehow hold them liable? Not anywhere in the document would I find that if a decision is not made by the Committee then the outcome would be ruled in favored of the owner. But in the appeal section it seems like it would but I doubt they will let this one slip during my appeal process.

In additional, not anywhere in the document would I find that the HOA have restriction or rules on the frequency of access to the slope or the term "active maintenance" and it seems like all the letter was based on their interpretation only subject to comments or it's highly opinionated with my neighbor inputs. Can they turn my own fenced property into so called "common area" and restrict my own access? Is that legal?

Note that the only valid concern they've brought up was the drainage issue, something that can easily be solved with a certified professional. But based on that drainage issue can they ask me to remove all the work that has already been done if they failed to give me a notice on day 45?

Secondary questions:
My question is that the enclosed property is in my own backyard, away from the common area where most restriction are enforced, is my backyard viewable from my neighbor defined as common areas? Or is area visible from the second floor of the property consider common area? When I get up on the slope, overseeing my neighbor yard, would that constitute an intrusion of my neighbor privacy? My neighbor particular points it several time that it was intrusion of their privacy whenever we get up on the hill, do they have a case? Its my own property anyway, why cannot I have access to it anytime I want and why is it their business?

The garden we've purposed served dual purpose as an vegetable gardens and orchards on the hill side. I don't see it being called as a "farm" I can called it "ornamental veggie garden" if I would like, the term "ornamental" seem vague to me.

I see our HOA management is very passive about reinforcement except on occasion when they are confronted by active loud spoken neighbor. I think I would like to try to go thru the appeal process but would like to have your inputs on this particular issue. Instead of being emotional I would like to let this sit for another two days.

One of the incident for which one of the homeowner had fake lawn installed on the front (that's being prohibited at the time) but was able to get every one to vote in order to overturn that restriction. Not to mention the homeowner was on the BOD which I guess that also help to vote in their own favor. Similar case for my neighbor who installed a swimming pool without my proper approval thru the architectural plan to have my signature!

Thanks for all of your input so far

"Can I held the HOA liable for not getting back to me within the 45 days after the submittal plans? The failure to conduct the guideline as stated in the document during the first 45 days period would somehow hold them liable?"
Not anywhere in the document would I find that if a decision is not made by the Committee then the outcome would be ruled in favored of the owner. But in the appeal section it seems like it would but I doubt they will let this one slip during my appeal process”.

I don’t think it holds them liable, it just means that your plan is approved by default.

"In additional, not anywhere in the document would I find that the HOA have restriction or rules on the frequency of access to the slope or the term "active maintenance" and it seems like all the letter was based on their interpretation only subject to comments or it's highly opinionated with my neighbor inputs. Can they turn my own fenced property into so called "common area" and restrict my own access? Is that legal?"

HOA trying to dictate what frequency you have to your own property is far fetched on their part. The common area is a legal area determined by the developer and approved by the city, HOA do not have the power to make your back yard into one.

“Note that the only valid concern they've brought up was the drainage issue, something that can easily be solved with a certified professional. But based on that drainage issue can they ask me to remove all the work that has already been done if they failed to give me a notice on day 45?”

Your plan was approved by default, you did your part. You might get a professional to write a letter stating that there are no erosion, or master drainage issues with your design send it to the BOD and CC management company.

“My question is that the enclosed property is in my own backyard, away from the common area where most restriction are enforced, is my backyard viewable from my neighbor defined as common areas? Or is area visible from the second floor of the property consider common area? When I get up on the slope, overseeing my neighbor yard, would that constitute an intrusion of my neighbor privacy? My neighbor particular points it several time that it was intrusion of their privacy whenever we get up on the hill, do they have a case? Its my own property anyway, why cannot I have access to it anytime I want and why is it their business?”

Yeah seems to be complaint driven with no foundation in the HOA docs, check! If you need backing you could take it to a HOA meeting and a majority vote by the meeting can work, read the by-laws.

“The garden we've purposed served dual purpose as an vegetable gardens and orchards on the hill side. I don't see it being called as a "farm" I can called it "ornamental veggie garden" if I would like, the term "ornamental" seem vague to me. “

These “Architect Committees” are not Engineers, don’t have a clue, again are usually a legal disaster, your assessment is a good as theirs…just a matter of picking your battles.