As you prepare to vote for the proposed CC&R Amendment – it is important that you have accurate information. Since many people were not able to attend the Homeowner forum held last Saturday, April 14th that was dedicated to the discussion of the proposed amendment, the Association has posted the information presented by Rob Rifkin (past board member) and Richard Fiore (legal counsel) on the website. To ensure that the majority of the residents have access to this information, an email blast was sent Monday with the letter from legal counsel and today this email includes an attachment which summarizes the information that Mr. Rifkin presented. Please take a few minutes to read this document and if you are interested in more discussion on the subject – check out our website www.niguelshores.org .
Deborah Baker, CCAM AMS
NSCA General Manager
These notes are the basis of what I said at the Amendment discussion on April 14, 2012. They are based on a document that was created by Roy Dohner. Please feel free to distribute them to anyone who wants additional information. It noticed that many people were unaware that the Association needs this amendment to defuse future litigation and allow Niguel Shores to continue to adopt and enforce rules that vary by tract.
In 1969 the developer of the Niguel Shores Community prepared theassociation CC&Rs for the first tract: number 6935 also known as Broadmoor. This tract was developed as single-story detached homes with an easement sometimes described as “reverse” and unlike any other tracts to come in Niguel Shores.
Over the years, the developer created new tracts and each time the CC&Rs were amended to include the new tracts. The various Boards began adapting and revising the rules to address the differences between the tracts. However, the CC&Rs were never revised to explicitly state that the Rules & Regulations could vary from tract to tract. An amendment seemed redundant since the need was so apparent: differences in setbacks, easements, and other restrictions required differing rules to accommodate the different types of housing added to the original tract.
The homes aged and renovations were planned which created major revisions to the original homes. Neighbor-to-neighbor conflicts arose when existing views, privacy and open space were reduced. The neighbor-toneighbor conflicts grew into legal conflicts, which included the Association because the Association was responsible for managing and interpreting the rule and regulations.
Initially the dollar values were not significant. As the value of the properties grew, so did the cost of litigation and the complexity of managing the rules and regulations.
Over the past few years as the Association defended our rules and regulations it was determined the Association’s legal position could be strengthened. To do so would require the CC&Rs be amended to document the Association’s long-standing practice of managing the rules and regulations on a tract by tract basis.
Basically, the hierarchy of governance is:
1. Law (Federal, State, County, City)
2. Association Documents (CC&Rs, Bylaws, Rules & Regulations)
The Davis Stirling Act is a California State Law that mandates how HOA are managed. Among other things, this act outlines the due process for managing voting and the adoption, amendment or repeal of rules. Because of the hierarchy of governance, this act supersedes Niguel Shores Community Association’s CC&Rs.
This means that if there are conflicts between any NSCA documents and state law then the Davis Stirling Act “wins” and we follow its rules regardless of what is in our association documents.
The first part of Davis Stirling regarding rules (1357.100 on page 15) tells us that the board of directors, and only the board of directors, already has the authority to adopt, amend or repeal rules:
(b) “Rule change” means the adoption, amendment, or repeal of an operating rule by the board of directors of the association.
If you think this gives the board too much power, you should be happy to know that …
1357.140 gives the membership (us) a way to reverse a rule change for rules described in 1357.120.
1357.150 explains that our board of directors, and only our board of directors, already has the authority to implement rules:
(c) For the purposes of this section, a rule change is commenced when the board of directors of the association takes its first official action leading to adoption of the rule change.
1. Per 1357.100.b our board of directors (representing the community) already has the authority, in its sole discretion, to adopt, amend and repeal rules.
2. Per and 1357.150.c our board of directors (representing the community) already has the authority to implement rules.
3. It is self-evident that the board (representing the community) is also charged with interpreting rules when the need arises.
4. This makes everything in the originally proposed amendment redundant except for the “tract by tract basis” part.
TRACT BY TRACT RULES
As I said earlier, tract-specific rules are nothing new in Niguel Shores, ever if committing that concept to writing is. Given the radically different types of residences and lots in Niguel Shores, I don’t think that anyone wants to change this. If we do not explicitly state that our community’s varying tracts can have different rules then the board could be forced to change to a system where all rules apply to all lots and residences. This would bring about radical changes in Niguel Shores that would probably be detrimental to most who live in the community. Imagine the elimination of on-street parking even on single-loaded streets or being required to follow setback rules even for zero-lot-line homes. These are just two examples.
Adopting the proposed amendment which explicitly allows the Association to maintain Rules that differ tract by tract will allow the Association to defend views, privacy and open space more vigorously.
I hope that you are now as confident as I am that this amendment will only codify what has always been unwritten yet understood in Niguel Shores: we rely on tract-specific rules for our diverse community. The amendment will not change the authority of our board of directors in any other way.
Note: The below comments are a chain of e-mails circulating Niguel Shores regarding the CC&R Amendment