![]() ![]() Section 5: OPA Board Subject: Marty and the Trailer Msg# 743967
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ECC cannot create any guidelines/rules/whatever that do not have an authority based in the DRs. Well, I believe that there are enough words in the DRs of all sections, all includes the older sections, to grant the power to the ECC to create rules, write standards, and set policies in addition to those in the DRs. I believe this has been upheld by a court when the rules were challenged by the Builders' Assn years ago and again each time a judge rules against a member for trailers. The DRs grant in par. 5 E in your DRs to the ECC final decision rights on its rules "in the event the same are not in accordance with all of the provisions of these Restrictions." To me, this clearly grants the ECC that "authority." Underlining is mine. Further the DRs state that "in the event the Committee deems the plans, specifications or details, or any part thereof, to be contrary to the interests, welfare or rights of all or any part of the real property subject hereto, or the owners thereof, the decision of the Committee shall be final." One could argue that this only applies to construction, but one could argue that this applies to issues not just a specifically spelled out later in "these Restrictions" in par. 8. In par. 9 of the DRs, the authority of the ECC is further spelled out to "allow reasonable variances of these Restrictions ........ IMO, by granting a variance, the ECC is "creating" a rule for that one case which it can later apply to other cases or grant "blanket" approval in its rules (later called Guidelines). One could read in that par. the authority to allow boats and boat trailers (which it specifically does) and not allow other "things." Really, though, how you can read or how I do read will not resolve this. IMO, it's already been resolved in the courts. But, if Marty wants to take it to court again, fine. BTW, the reason that I "won't" even think about attempting to have boats or boat trailers (such as that ugly trailer in your driveway) removed is because I believe that precedent has been set for so long, that no judge would change that. And, if we allow box trailers, then the precedent will have been set for them, too. How would it look if all driveways on Watertown Road had a trailer parked in it?
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For reference, the above message is a reply to a message where: Joe, how do you know what Boise intended? Obviously I don't. I was offering my opinion that I do not believe Boise intended for association members to be able to park large storage trailers in their driveways. What do you think? Also in a later post you discussed the DRs and provided some quotes/extracts. Later DRs have modified par. 5.E to include the term "guidelines" to "written standards and policies" of the ECC of which the ECC may "disapprove." Are you talking about DRs for sections after the initial 11 or so Bose set up. I don't believe the word "Guidelines" is even mentioned in the DRs for the first 11 sections -- and those 11 sections make up a major share of association members. ECC cannot create any guidelines/rules/whatever that do not have an authority based in the DRs. The Guideline/rule about tags on boat trailers was a perfect example of ECC exceeding its authority by setting rule/guideline not based on authority granted in the DRs. The Guidelines are only guidelines as to what may or may not be done based on the wording of the DRs. The purpose of the Guidelines is to clarify ECC's thoughts on the DRs. Of couse the board sets the Guidelines, another interesting aspect of all this. Bureaucracy at its finest. While there are Guidelines (rules) about trailers, the Guideline that applies to Marty's trailer needs no rule or Guideline beyond the DRs... assuming the storage trailer has a load capacity of 1 ton or greater. Marty's lot is covered by the following DR: No vehicle, with a load capacity of one (1) ton or greater, including but not limited to commercial trucks, trailer trucks, and buses shall be parked or stored overnight or longer on any lot in the Section or Subdivision in such a manner as to be visible to the occupants of other lots in the Section or Subdivision or the users of any street, waterway or golf course within the Section or Subdivision, unless the prior written approval of the Committee has been obtained." If the trailer has a load capacity under 1 ton then Marty may have an excellent case, depending of course on how a court might judge the DR section that some say prohibits all trailers. ((b) No temporary house, trailer, tent, garage, or other outbuilding shall be placed or erected on any lot) If Marty were to lose on this basis, then a judge would probably have to find that boat trailers may be denied as well. While I do not like all these boats parked on properties, we can't change that now. Can't or won't. In my view there should be no trailers of any kind allowed and I would vote for a DR change to that effect. However, I suspect too many boat owners would not vote in favor to protect their own convenience as opposed to the overall appearance and property values of the community. I have no doubt many would disagree with me. |
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