By Lloyd Sherman
This article is the first of what will likely be several articles. The number is yet to be determined.
Why this series? I certainly understand the desire of those in positions of management to make improvements, reduce costs, or generate new revenue streams, but such should never be done in order to shift financial responsibility from one party to another when those actions violate the intent of the HSV Declarations. Times are hard enough given inflation, and as a community with a large population of retired property owners, some consideration needs to be made to not burden the property owner with any more costs than necessary. There are mechanisms in place to accommodate increases that are required, and that must be done via a membership vote to increase assessments or fees being charged that circumvent the assessment process. Any move in the direction of trying to transfer other fees off to property owners must be made in conformance with both previous practices as well as the HSV Declarations. If that is what is occurring, the approach should be re-evaluated.
Activities over the past several years at the POA Board of Directors meetings have resulted in my having some concerns that either there is a lack of understanding regarding our Covenants and Restrictions (Declarations), or they are clearly being ignored. Either way, there needs to be additional research done and policies being put in place rescinded.
Our Declarations are the first point of reference and supersede our Bylaws and Policies and Procedures. They were first introduced on April 20, 1970 (aka Date of Plat). They have been amended three times in 2006, 2013, and again in 2013. Some may contend they are outdated, but the reality is they are in place and were the intentions of the original developer. They can only be amended by a majority vote of the property owners (referred to as Members).
The specific items that elevated my concerns happened during the May board meeting. The specific item of interest was “Ken Unger presented a proposal for modification of current Building Permit Fees. For the Electrical Connection, New Home Roadway, New Home Water and Sewer Force Main Service, and 2” Water Service Long New fees, adding the term “or HSV cost whichever is greater” was proposed. Director McLeod MOVED to approve the amendments to the building permit fees as presented. Director
Quinton SECONDED, and the Board unanimously APPROVED.”
This was followed up at the June Meeting by “The Public Services Department recommends adding the following to Chapter 4, Article 1, Section 3 of the Policy Guide:
- The Owner shall be responsible for all parts and labor for any new wastewater collection system including all lines connecting from the wastewater collection system to the HSVPOA wastewater system within the adjacent right of way for a period of one (1) year period after issuance of certificate of occupancy. In addition, the Owner shall obtain a three (3) year warranty on the pump.
- The Property Owner owns and shall be responsible for ensuring proper alarming of the waste water collection system. Yearly inspections by a licensed electrician via testing of alarms within the control panel are recommended. It is also recommended that property owners contact a licensed plumber about the possibility of installing a sewer popper cleanout or additional check valve on the line connecting their residence to the wastewater collection system. Any damage done to any property owner’s property or residence as a result of a wastewater collection system failure is the sole responsibility of the property owner.”
Page 1 of the Declarations: “Desires to provide for the construction of the facilities aforesaid and also desires to provide for the preservation of the value and amenities in said community and for the maintenance of said private ways, private roads, private lanes, and private pathways, and public streets, public roads, public ways and public lanes, as well as the water system, sewer system, lakes, golf course, playgrounds, permanent parks and other common facilities and limited common facilities; it goes on to say each and all of which is and are for the benefit of said property and each owner thereof;. The Declarations clearly state that the water and sewer system are considered part of common property, which are to be funded through the assessment process.
Article I, Section I, (c)- “Common Properties” shall mean and refer to those areas so designated upon any recorded subdivision play of The Properties and intended to be devoted to the common use and enjoyment of Owners of The Properties; and shall also mean and refer to any improvement designated by the Developer as Common Properties and intended to be devoted to the common use and enjoyment of Owners of The Properties, and shall specifically include, but not the exclusion other improvements which may hereinafter be designated as Common Properties by the Developer, the following:
Ways, roads, lanes and paths not dedicated to the public,
Permanent Recreational Plots,
Article VI, Section 1. Water System and Sewer System. It shall be the obligation of the Association to construct the water system and sewer system and same will be part of the Common Properties. The Association will construct and extend water and sewer to lots sold by Developer at the earliest practicable time after such sales. The cost of the construction, maintenance, capital improvements, operation, taxes and other expenses incident to the water system and sewer system, and operation of each, shall be paid from assessments against each Lot or Living Unit.
So, in this author’s evaluation along with the use of the word shall, the Declarations are not ambiguous. In the legal world, the word shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. It should also be noted that the declarations are clear that anything related to the water or sewer systems is to be funded through assessments and not through charging separate fees.
Article X, Section 4. Special Assessments for Capital Improvements with Vote of Members. the Association may request and levy a special assessment limited in time and specifically for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of the water system, sewer system. Shall have the assent of 51% of the votes of each class of members.
I’m attaching a highlighted copy of the Declarations with some of the information reported here if you are inclined to want to read them for yourselves. Failure of both management and the POA Board of Directors to understand these Declarations should not occur.
I took the time to send a notification to the board for their June meeting outlining my concerns and they chose not to even acknowledge my input or respond. We have had issues with a lack of transparency in the past and I can only hope and pray that we are not in the process of returning to those times.