Defunct HOA & CC&R with contradictions? Help!

[robinmm04]

Hi there, I'm hoping someone can help or give some guidance. We live in an area which was originally established as part of an HOA -- it has long since been defunct (decades) & from what I understand, the community services district (the only remnant) voted in 2012 to not enforce the CC&Rs. Our property is a little over 1/2 an acre, and we have 10 chickens & 2 small goats (under 24 inches, full grown). About 2 weeks ago, one of our neighbors, who lives 2 properties over, sent us a "Cease & Desist" letter via his attorney. His initial letter demanded we get rid of the chickens, goats, not acquire any horses which we were contemplating getting (unbeknownst to us, lol), and complained that our (indoor) dog barks & charges the fence (he kept attempting to feed her). His second letter (after our reply with the zoning ordinances) dropped the bit about the horse(s) which do not exist, made no mention of the dog -- we had since posted "No Trespassing" & "Beware of Dog" signs by our gate to keep him away, but continued in the insistence that we are in violation with the chickens & goats. My understanding in reading the CC&Rs as well as the county zoning ordinances is that we are in complete compliance.


From the CC&Rs -- ours is one of the lots mentioned:

3. Until the expiration date of these restrictions, the following lots, to wit: Lots 1 through 11, inclusive and 18 through 73, inclusive and Lot 140 in this subdivision are designated as R-S Suburban Residential Zone. The permitted uses and regulations shall be the same as the R-1 zone except for the following additional permitted use: Two horses may be kept on each lot for the personal use of the owner of said lot provided said lot contains ½ acre or more; however, the number of horses shall be limited to one per ¼ acre. The keeping of such horses shall conform to all other provision of law governing the same and the stable, barn or corral shall be kept and maintained in strict conformity with the restrictions set out in the R-S zoning portion of the Official Land Use Zoning Ordinance for the County of Kern as the same may be amended from time to time.

11. LIVESTOCK AND PETS. Except as otherwise herein set out, no animals, livestock or poultry of any kind shall be raised, bred, grazed, maintained or kept on any lot for sale or commercial purposes. Only such animals or livestock for personal use of the occupants may be kept on any lot as shall not interfere with the safety, health, convenience, or comfort of the occupants or owners of any lots within 1,000 feet from the perimeter of the subject lot. No poultry, pigs or goats may be kept or maintained on any lot at any time or for any purpose. Household pets may be kept under the following conditions: No pen or enclosure in which household pets are housed may be erected or maintained within twenty-five (25) feet of front or five feet (5) of rear property line or fifteen (15) feet from any other property boundary.


From our County's Zoning:

C H A P T E R 19.08
INTERPRETATIONS AND GENERAL STANDARDS

19.08.375 PYGMY GOATS
Pygmy goats, with a height of less than twenty-four (24) inches, shall be considered to be a household domestic pet and are permitted in conjunction with the residential use of property. Except where otherwise permitted, there shall be no more than two (2) adult (over the age of four months) pygmy goats kept on any legal lot.


C H A P T E R 19.18
LOW-DENSITY RESIDENTIAL (R-1) DISTRICT

19.18.020 PERMITTED USES
The following uses and all others determined to be similar to these uses pursuant to Sections 19.08.030 through 19.08.080 of this title are permitted in the R-1 District:
A. AGRICULTURAL USES
── Breeding and raising animals pursuant to Section 19.18.130 of this chapter

19.18.130 SPECIAL REVIEW PROCEDURES AND DEVELOPMENT STANDARDS
The following special review procedures and development standards apply in the R-1 District:
A. The breeding and raising of animals permitted pursuant to Section 19.18.020 of this chapter shall be limited to poultry, rabbits, and birds for domestic or hobby purposes, or similar small fowl and animals raised for food, scientific, or furbearing purposes, provided not more than twelve (12) of any one (1) or combination of such animals may be maintained on a single lot, except that a maximum of forty (40) pigeons may be kept within an enclosed structure. Animal enclosures shall be subject to the setback requirements specified in Subsection 19.18.090.B.


Do I have a leg to stand on in this?

Thank you for any feedback.

 

[gawildlife]

It's to early in the morning for me to interpret obfuscation as spoken by bottom feeders aka lawyers but my first reading understanding says you can send him a three word reply beginning with GO and ending with YOURSELF.

 

[robinmm04]

I spent all day yesterday on the phone with our community services district, our county's code compliance planning office, the real estate lawyer recommended to us, and our pastor. I learned a couple of things -- most importantly that we are, in fact, in full compliance with the law as far as our county is concerned, and that the old CC&Rs are no longer enforced at all. Our pastor is trying to get ahold of our neighbor's pastor so that we can deal with this in a Biblical way, and if that doesn't work out, our next step, if he tries to sue us, is to seek formal mediation.

 

[matt44644]

What state are you in?I don't see how a neighbor can send you a "Cease & Desist" order.You might need to get a lawyer.
Sometimes lawyers send letter just to get paid.

 

[matt44644]

Forgot to add cease and desist usually only implies to copyright or trademark infringements from my understanding.

 

[robinmm04]

We're in California. The lawyer I spoke with wasn't surprised a the wording, so I guess it's not unusual. It would cost about $1000 just to have a lawyer send a letter, so we'll be pursuing free & inexpensive options first. Mediation would only cost us $250, & having our pastors try to mediate is free.

 

[Sonoran Silkies]

You need to read through the whole CC&Rs, and you need to look at the wording of the decision to not enforce the CC&Rs. Many CC&Rs have a provision that allows individual homeowners to enforce the provisions, even if the HOA does not, or chooses to not, or for that matter if the homeowner is suing the HOA. If the remaining board voted to suspend or deactivate the CC&Rs (and had the power to do so), then the neighbor has no recourse. But if they simply made an official decision that they would not enforce them any longer, and if the CC&Rs allow the members to sue to enforce provisions, then he certainly still has the right to do so.

None of which addresses whether or not you are within HOA restrictions, As I read the excerpts you provided, if you are indeed one of the mentioned lots, then it seems that if your numbers are within what is allowed, you are likely in compliance.I would guess that the neighbor is not aware that your lot is one of the ones mentioned in paragraph 3. However, paragraph 11 is somewhat ambiguous in that first it says that you can have poultry and livestock for personal (non-commercial use), and then it says not. Do any of the intervening paragraphs provide any additional guidance, especially relating to the lots mentioned in paragraph 3? And when do the CC&Rs time out (mentioned at the beginning of paragraph 3)?

 

[robinmm04]

In speaking with the CSD, they know that the CC&Rs are no longer enforced, but don't know when that happened or under what conditions. A former resident of the area who lived in the area for 27 years and moved in December 2012 says, "That year, the GHCSD had voted to stop enforcing CC&Rs and to leave it up to the county to do so should they choose to do so." Another resident said, "There was an informational ballot of property owners several years ago one of the questions on that ballot was did the property owners want the GHCSD to consolidate all the CC&Rs, we said no and a few months later they voted to abandon them all." I guess I'm going to have to request all the meeting minutes from 2011-2012. There is nothing else in the document about our specific lot. Here's what the CC&Rs end with:

GENERAL PROVISIONS

These conditions shall run with the land and shall be binding upon all parties and all persons claiming under them
until June 30, 1985 at which time said conditions and covenants shall be automatically extended for successive periods of
ten years, unless by vote of the owners of a majority of the lots in said Tract, it is agreed to change said conditions in
whole or in part.

PROVIDED FURTHER, that if any paragraph, section, sentence, clause or phrase of the restrictions, conditions
and covenants herein contained shall be or become illegal, null or void, for any reason or shall be held by any court of
competent jurisdiction to be illegal, null or void, the remaining paragraphs, sections, sentences, clauses or phrases herein
contained shall not be affected thereby. It is hereby declared that these restrictions, conditions and covenants herein
contained would have been and are imposed on each paragraph, section, sentence, clause or phrase thereof, irrespective
of the fact that any one or more of the paragraphs, sections, sentences, clauses or phrases are or shall become or be
illegal, null or void.

PROVIDED FURTHER, that if any owner of any lot in said property, or his heirs, or assigns, shall violate or
attempt to violate any of the conditions, covenants, and/or restrictions herein, it shall be lawful for any other person or
persons owning any other lots in said property to prosecute any proceeding at law or in equity against the person or
persons violating or attempting to violate any such conditions, covenants, and/or restrictions and either to prevent him or
them from so doing or to recover damages or other dues for such violation.

 

[mrsmoparcrazy]

Robin, I know this is 6 months old. But what was the outcome? Most of those Cc&r's are up for vote by the property owners in 30+ days. I can't find how to call a vote. I don't think most owners know about the provision, but we could be completely free from the CC&R's if the majority of property owners vote to eliminate the restrictions. By the way, we live in the same area.