Monday, March 8, 2010

Government control of association functions - deed restrictions

We have a controversy in The Woodlands that has arisen from a single action. I will not direct my comments to the exact nature of the issue, but will direct my thoughts to the overall situation relative to the situation. This is also intended to review the process here so that residents have a more in-depth understanding of it.  In The Woodlands, there are three organizational entities which enforce property covenants, otherwise known as "deed restrictions". The enforcement of covenants is not normally part of a government function. In this region, association fees are normally paid by residents to fund association functions, especially to provide covenant enforcement. In the merger of the township with the associations, the township government acquired legal authority through the legislature to bring covenant enforcement under its umbrella. This has inherent consequences that residents should understand. We should also understand why we have merged this function into the government rather than keeping it separate.

Our covenants in many ways are no different than other communities, except for a few values we uphold to make our community uniquely "The Woodlands" and to provide amenities for the type of resident for which the community is intended. For example, the community highly values its trees by design and vision from the master plan. This value includes the trees on home properties, as well as in green areas. A tree of 15+ years is recognized for its value to neighbors and the community as a whole. Therefore a caliper measurement of a tree's diameter determines its protection by property covenant. This same value is highly esteemed for public property owned by the township. 

To enforce our residential covenants, we have a three-tiered system. On the frontline we have employees in the township who administer enforcement. They receive complaints, keep records, prepare and send out notification letters, monitor neighborhoods for violations, organize materials for meetings of the DSC and RDRC, and more. The Residential Design Review Committees (RDRC) is the second tier. This committee consists of resident volunteers elected annually by the community of each village to review covenant violations and decide on appropriate actions. The theory is that covenants are for the residents, and therefore actions should be decided by the residents of those village neighborhoods. I am the chairman of one of those committees, so I have been involved in the decision making process during my tenure of several years. It is the goal of an RDRC committee to be fair to the residents but at the same time enforce the covenants. A covenant is a contract between the community and the property owner. Therefore, it is legally binding. The RDRC committee members are not normally deeply versed in law, nor are the members necessarily property experts. They live in the same neighborhoods as those who seek changes to their property or have violated the covenants. They seek consistency in property presentation to the public.  Those who serve should be and generally are citizens who have the same value system as the community and willing to spend their time to keep the community consistent with the master plan vision. Each decision is based on data collected from the covenant administrator who has been assigned to that particular committee, plus any committee member's personal knowledge of the situation. The RDRC does not have the authority to file lawsuits, nor does it have the authority to decide on final action of any sort. After the review of requests, the committee recommends an action plan to the property owner. It also recommends an action plan to the third tier of enforcement, if the owner does not wish to follow the recommendation, or the committee is electing some variance to the covenant.  RDRC and DSC committee meetings are open. Each committee member follows the regulations of the Texas Open Meetings Act(TOMA). Residents are welcome and do at times attend RDRC meetings and DSC meetings.

The Development Standards Committee (DSC) consists of four appointed qualified residents and three Development company designates who act on enforcement of the standards. The Township Board of Directors is responsible for appointing individuals to this committee. Most of the time, this committee will agree with the recommended actions of the RDRCs but occasionally spots an issue and overrides a recommendation. I have seen only one of these instances in our village, where there was an issue with water drainage and the DSC took appropriate steps to investigate the design of the neighborhood, discovering something the RDRC did not know, and therefore took a different approach to the solution. This is the reason the committee exists, to provide a higher level of expertise on some issues and to provide a means for a resident to protest the RDRC recommendation.

So how does all of this play into what recently transpired at the township meeting? Our tax dollars are now used to enforce the covenants. If legal action is required by the DSC, money must be spent by the community. Legal mitigation of an issue happens when a resident either refuses to take the action(s) prescribed, or when the property owner cannot be found. The DSC has the authority to take a lien out on the property to pay for such actions. If the community pays for mowing the grass, or caring for or repairing the property, the property owner is required to eventually pay for those services. And if there are court costs, the property owner will pay for that as well, unless of course, the property owner wins the case. If the resident cuts down a large tree without permission, he will likely have to pay for replacement(s).

We do have residents who refuse to follow the covenants, even though the residents formally promised to do so by signature when they purchased (or rented) the home . Each and every covenant is to be enforced. Some people believe the trashcan regulation is simply frivolous, but it is serious. Cans left in view of neighbors and the public is unsightly and a nuisance to many residents. No resident has the right to interpret the covenants the way he or she wishes to interpret them. The trash can regulation is very important to some residents, and the regulation is part of the covenants. Making one part of it more important than another is not an option either. However, legal action is prioritized and generally taken based on the severity of the issue. If residents are routinely annoyed by unsightly property and the property owner refuses to comply with the action dictated by the DSC, legal action will be taken and that will cost taxpayers some money.

So the recent issue, noted as a "transition issue" by the Township Board, is one of accountability for taxpayer dollars. While the DSC is an independent entity, not regulated by the Township Board of Directors, it does not have spending authority per se. Covenant administration's budget for 2010 is $2,196,883 and the anticipated income is $30,000. President (Don Norrell) of the Township has signature authority for legal expenses. No one seems to actually have the authority to say "no" to the actions of the DSC to take these actions. Therefore the controversy - growing pains maybe, but also perhaps an inappropriate government function. The idea for having this function in our township government is efficiency and funding power to enforce the covenants. So if the township can intervene in the decisions of the DSC, the process becomes vulnerable to politics, which cannot be tolerated. Our covenants cannot be enforced based on the popularity of government official(s), nor on personal relationships.

I believe everyone in authority in the township does not want the Township Board of Directors to be a fourth tier in the process. They are not designated to be the last resort for a protest by a resident. How are the DSC committee members accountable? They can be removed by the Board of Directors if there are serious issues in conduct. The issue that triggered a discussion on the overall process and accountability debate, was one of timing and resident consideration. The resident asked to cut down a tree and apparently made some remarks on the character of one or more officials for their decision. A constraining order was issued to protect the tree(s), some saying that action was due to those remarks towards some officials. The restraining order occurred during the Christmas holidays. There is a history of residents occasionally cutting down trees, even if they are not permitted to do so. Sometimes the DSC has to assess the probability of that happening. A restraining order is the prescribed action in that situation. 

Commentary

The question of covenant enforcement autonomy continues to haunt me as we go forward. I believe this Township Board of Directors has the correct perspective on autonomy, but on the other hand, there is the issue of financial control. Taking this one step further, perhaps we should not even have the covenant enforcement function in the government, but instead return back to a separate resident association concept, with fees levied on residents, instead of taxation, to fund this type of activity. Then however, we would lose the economic advantage of IRS taxation relief and probably suffer a higher total cost for this function. We would not have the financial backing of the large tax dollar base when we have to go to court and engage in a battle with one or more property owners. Therefore, I am not in favor for backtracking on government control of the function.

Whatever occurred in this case seems inappropriate to me on both sides of the fence, but whatever occurred would not change anything in the overall picture. The covenants must be enforced without political influence on the process. I see no reason to add another layer of decision-making. The RDRC recommended decision should normally stand, but it can be contested and overruled. The DSC action should always stand. Residents can contest its decision in court. That keeps the whole process autonomous with checks and balances, and like having the function in an association, it is not governing; it is simply enforcement just like a police law enforcement unit. So the township seems to want to reserve the right to intervene in court cases, because those cases will be in the name of the township. I believe we cannot do that. If it makes the township look bad or affects its image to the public, that cannot be the basis of enforcement; the action can only based on the enforcement of a covenant itself. There is compliance or there is not compliance. Certainly we need to have a contract for legal advice on what action to take sometimes as well as consider alternatives to filing a case in court.  It is also wise to assess the impact of non-compliance and see if there is a real need to take a harsh action. That is up to the RDRC and DSC on how they conduct their business. This has worked well in the past from my experiences, but not saying it will always be so. Community associations almost everywhere also have these issues.

Legally, there are books written on the subject of associations that tend to make one want to have this function in a government, At Harvard, the issue of the power of an association was  reviewed in "The Rule of Law in Residential Associations". As one might expect, there are varying views of this subject in other universities and circles of law. By having the function in the Township, we trump the issues of real government vs "democratic sub-societies". However if we maintain our position of autonomy, any related citizen rights issues remain.  

2 comments:

Ken said...

"The resident asked to cut down a tree and apparently made some remarks on the character of one or more officials for their decision. A constraining order was issued to protect the tree(s), some saying that action was due to those remarks towards some officials. The restraining order occurred during the Christmas holidays".

Great article up until this part.
The legal action was made based on the homeowners comment alright, but it was not his personal
comment. The homeowner asked the board "what would happen if he cut the tree down anyway", he was advised not to and follow the boards final decision. He then left the room, but as he walked out he said something along the line of " I'll cut the damn thing down or I don't give a damn what they say I'll cut it down".
I'm sorry but I am at the far end of the table and he was walking away from me, but I did hear "cut it down, damn, & don't care".
The only personal comment I heard was "pencil neck", and only remember that because I found it amusing with my 18 1/2" collar size.
When we met with our attoney, the personal comments were never discussed, only the fact that the homeowner had made a threat to cut the tree down. As for it being during the holiday's, we have no control of the delivery of a legal notice. Once we vote to do so we don't see it again, and have no idea or control of how long the attorney or the courts take to proccess it.
We gave the homeowner several chances to prove his need to remove the two trees, and he failed to give us anything that would have allowed us to change the decision.
He instead lobbied anyone he could find and filled them with misinformation to try and prove his case. Anyone that has come to us and asked for the facts, has agreed with the DSC's decision.

Your comment "some saying" takes away from a fine article and drags you down to nothing more than speculation and innuendos, and puts you in the same boat as that homeowner.

indianspringsguy said...

Ken, thank you for your comment. I interviewed the homeowners and reviewed the entire case documentation from their perspective and files. I will not argue the points made since they are not my own but the home owners view. I will however make known my thought on the data collected. Your statement about the lawyer does not make sense to me since he was the one to bring the issue to the board and issued the restraint order by the committee's direction. He had control of when the order was made. You had control of directing him when to proceed with his services. I was told he exited with the homeowner only to return to discuss what he overheard and suggest that action be taken. The case for cutting the tree was justified as far as I can tell. I reviewed the issue by a walkthru on the property so I would understand the homeowners request better. With the consultants view that was presented to the committee and today's knowledge of the effects from trees close to the home, I am sure we would not disallow the cutting of the trees that were rejected today. If I believed my family was threatened, I would have probably cut the tree down anyway; wouldn't you? The couple was totally convinced that the presence of a tree was threatening the safety of their family. When angered, people will say things they regret and don't even mean. I do not condone those words, but understand their reaction. As far as the timing, absolving the committees responsibility and accountability is unjustified. Continuing to justify the action is the problem. I did not go to the committee, because the bulk of the facts were before me in writing and the tree remains there today as evidence of the issue. The committee should have resolved their personal differences with the resident long ago and have not. If one makes a mistake one should fess up to it and fix it. That is my personal opinion on the matter. I would be happy to discuss this further with you or the committee. And I want to emphasize that I really do appreciate you taking the time to make your view and recollection known to everyone. I am sure you understand that I am a tree hugger, but I also am a people lover and do not like to see power struggles with residents. I am sure the committee did what they thought was right to do, but the evidence should have convinced the committee of the need to cut the tree down. The action taken has discouraged some residents if not many to not take their tree issues to the board. I have visited many residents and got all sorts of random feedback in that regard. The annual survey has a question that presents a statistical view of residents who have little knowledge on the power aspect of deed enforcement, but the people I have run across who know the issue from this disgruntled resident's perspective, are quite opinionated and are generally not among those included in the survey. My advice for anyone serving on the DSC or a DRB is to always put your foot in the residents and neighbor's shoes and if you do not know what size a shoe it is, find out. That equalizes the position of all involved.