![]() ![]() Section 5: OPA Board Subject: Marty and the Trailer Msg# 743991
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A variance is not creating a rule. A variance is allowing something not ordinarily allowed in an particular instance where the EC has the authority in the DRs to allow variances. A variance amounts to lessening a DR restriction. This is certainly within the purview of the ECC in certain areas of the DRs. What the ECC cannot do is make rules or Guidelines more restrictive than the DRs. Surely you would agree; at least I hope you would agree. The legal question is whether or not the Guidelines cross the line and set rules more restrictive than the DRs allow. You also seem to be sidestepping something here by your constant reference to ECC setting rules and Guidelines. As you are well aware ECC sets none of these rules and guidelines. All the Guidelines are set in place only after approval by the Board of Directors. As a practical matter, the entire process is a joke when viewed in the context of the actual words in the DRs. |
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For reference, the above message is a reply to a message where: 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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