Against HOA Rules, How Hard Would You Fight?

[kimmypie]

They denied my variance but didn't say why. I have gotten a few of us in the neighborhood who also want chickens and we will all go to the HOA meeting and try to get some more info on how to change the rules.

 

[Sonoran Silkies]

Most HOAs have no provisions for a variance, and unless they have those provisions, the board has no legal right to grant one. Variances are generally a CITY or COUNTY process, and the cost and ease (or lack thereof) of acquiring one varies with the jurisdiction.

If the restriction is in the CC&Rs, the board generally has no ability to make any changes. Just as congress cannot pass a law that violates the constitution (without it being struck down by the courts). To change the constitution, the PEOPLE (state by state) must approve the change. To change the CC&R's, the HOMEOWNERS must approve the change.

If the restriction is in the rules (less likely, but possible), then the board generally has the authority to insttute a change.

 

[kimmypie]

The city says we can have chickens as long as the stay on our property and we can't have a rooster. It's fine if the board can't make a change to the rules but no one (from the HOA) is telling me how we CAN make a change. We'll be going to the next HOA meeting to bring it up.

 

[Sonoran Silkies]

Read your HOA documents. These is likely a process listed for making changes. If not, then you would have to have 100% of the members agree to any changes. However, you should also check your state law as any rights granted there can negate CC&R provisions. Some states provide a process for changing the CC&Rs with less than 100% agreement (but it is likely to be 2/3rd to 3/4ths agreement).

 

[kimmypie]

Well here are our CC&Rs http://pioneerhoa.com/uploads/2/8/7/5/2875884/ccrs_-_pa3.pdf Page 33 looks like it says we need 75% of the homeowners to change a rule, but it's in legalese so who knows if I'm reading it correctly. Page 17 talks about animals.

 

[Sonoran Silkies]

Quote:
Yes, if you can convince 75% of those entitled to a vote to agree to a change, the provision can be changed. It actually sounds like a petition signed by those entitled to vote would create the change (assuming you can convince sufficient people).

For animals, you need to focus on chickens having become an ordinary and common household pet, and you need to focus on the appearance of their coop fitting into the neighborhood and meeting architectural review committee guidelines as would be required for a dog house or bunny hutch or... You also need to review the section after animals that addresses nuisances and deliberately address your plan to avoid creating any.

 

[kimmypie]

Thank you so much for the advice! I have been thinking about this and I didn't even know where to start. It's lame though because 2 blocks away they aren't in our HOA and I know of at least 2 people on that street that have chickens. So it's not like me not having chickens contributes to a grand neighborhood...

 

[dretd]

Wow, good luck with your petition.

I have heard/read about nightmares about HOAs depending on who is in charge. Like getting fines for having silk flowers in your flower boxes in the winter? Really? Or painting your house the unapproved tint of off-tan and having to repaint with the approved off-tan color. Or not having your deck pre-approved by the HOA prior to building even though it meets city codes and was built by a contractor. Or putting a front gait across your porch to keep your 2 year old from getting out into the street since you are now a single mom with an infant and 2yo since your husband has been deployed overseas and you just want to keep your kid safe. Really?

I know of some cities who have passed laws stating that HOAs cannot mandate the amount green grass (some have minimums like 80% lawn) after the severe drought several years ago and folks wanted to xeriscape but the HOAs wouldn't allow it. So I guess you could check your local city ordinances and see if there are provisions to undo some of the HOAs restrictions or that restrict the HOAs power.

I would start with the petition first. I think a lot of folks move in to places with HOAs that really don't like all of the restriction so you may have some luck if you are persistent. Its my understanding that the HOA rules are somewhat standardized and its something the original developer has decided on when they did the subdivision. They of course are long gone and the residents are stuck with someone else's whims.

I wish you all the best and please keep us posted!

 

[gavinandallison]

HOA = Gestapo, set up by bored people who want to control others.....

 

[Sonoran Silkies]

Quote:
Many cities REQUIRE new developments to have an HOA; a part of this is to build the infrastructure required by new developments without the city having to bear the costs. The age of the development, as well as its size often determines how strict the covenants are or are not. State and local law takes dominance over HOA restrictions to the extent of things mandated or forbidden by local or state law. However, HOA rules can be more strict than law. For example, if the city allows backyard poultry, the HOA does not have to allow it, unless it is phrased in such a way that it is a guaranteed right (pretty rare). On the other hand, if the city says "no poultry," the HOA cannot allow it.

Specific cases in point: some HOAs in Arizona had rules preventing flagpoles; the state legislature wrote new HOA law that guaranteed the right to display a US flag, but allowed the HOAs to govern the height and location of flagpoles (for example, a 20' limit on height of a pole would be allowed, and the HOA can specify setbacks, but they can no longer say "no flagpoles." Some municipal employees are required to keep their work car/truck at their residence, and in cases, these vehicles will not fit within a garage or sometimes even on the driveway. Many HOAs have "no parking on the street" rules. Again, the legislature wrote new law guaranteeing the right of municipal employees who are required to keep their work vehicle at their home the right to park on the street. The HOA can still fine for privately owned vehicles parked on the street, but not publically owned ones.