Regulations and Resolutions

 

 

 

Resolution 182

 

RESOLUTION  NO. 182

 

RESOLUTION OF THE BOARD OF DIRECTORS OF

THE PALOS VERDES HOMES ASSOCIATION

ADOPTING GUIDELINES AND ESTABLISHING PROCEDURES

FOR IMPLEMENTING THE ASSOCIATION’S

AUTHORITY TO MAINTAIN VIEWS, AND A POLICY THAT ENFORCEMENT OF THE ASSOCIATIONS AUTHORITY SHALL BE DONE BY INDIVIDUAL MEMBERS NOT PVHA

WHEREAS, Article V, Section 7 of the Declaration of Establishment of Basic Protective Restrictions, Conditions, Covenants, Reservations, Liens and Charges and Certain Local Restrictions  (hereinafter referred to as “Restrictions”) of Palos Verdes Estates and portions of Miraleste provided in part:

“Representatives of the Homes Association… shall have the right at any time to enter on or upon

any property for the purpose of cutting back trees or other plantings which may grow up to a greater

height than in the opinion of the Homes Association is warranted to maintain the view and protect

adjoining property.”

WHEREAS, The Board of Directors (the “Board”) of the Palos Verdes Homes Association (the “Association” or “PVHA”) adopted Resolution No. 146 in November 2000, Resolution 150 in November 2002, Resolution 156 in May 2005, Resolution 159 in July 2006 Resolution 165 in March 2010, Resolution 169 in March 2013 and Resolution 172 to establish procedures for its members to utilize the authority of the Association to correct view impairments created by trees or other plantings;

WHEREAS,  the Association has had experience with Resolution  No. 146, No. 150, No. 156, No. 159, No. 165, No.169 and No. 172;

WHEREAS, it is the Association’s policy to encourage resolution of view impairment issues between parties who are directly involved, whenever possible;

WHEREAS, in the course of resolution the parties frequently agree to the removal of trees or other plantings; removal requires the agreement of parties.  The Association does not compel removal of trees or plantings without such agreement;

WHEREAS, the Association wishes to adopt written procedures regarding its view impairment authority so that members may better understand the procedures and remedies available pursuant to Article V, Section 7; and with the hope that this understanding will further promote settlement by the parties;

WHEREAS, the Association has held public meetings, circulated drafts and received written and oral communications from its members;

WHEREAS, the Association wishes to adopt both guidelines and establish procedures for its members to utilize the authority of the Association to establish an opinion that trees and other plantings have grown to a greater height than in  the opinion of the PVHA is warranted to maintain the view, which cannot be resolved between the parties;

WHEREAS, Article VI Section 11, the Deed Restrictions give the Association “…the authority to interpret the Restrictions.”

WHEREAS, The California Supreme Court has established a principle that judicial deference will be given to Association decisions that are made in good faith, within the scope of its authority and in accordance with reasonable covenants;

Nahrstedt v. Lakeside Village Condominium Ass’n (1994) 8 C4th 361, 33, CR2d 63.  The California Supreme Court gave a comprehensive history and overview of common interest developments.  The opinion sets out certain basic principles including:

“An equitable servitude will be enforced unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the land against which the CC&R’s are recorded; or it otherwise imposes burdens on the affected land that are so disproportionate to the restrictions beneficial effects that the restriction should not be enforced.”

The court instructed that “…generally courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common development, are consistent with the development’s governing documents and comply with public policy.”

In 1999, in the case of Lamden v. LaJolla Shores (1999) 21 Cal 4th 294, the California Supreme Court established the principal that as a matter of law California Courts must defer to a community association’s board decisions.  The court held that where a duly constituted community association board upon reasonable investigation in good faith exercises discretion within the scope of its authority under its restrictions, courts should defer to the Board’s authority and presumed expertise.  The court states “thus we adopt today for California Courts a rule of judicial deference to community association Board decision making.”

California law recognizes the right to obtain a mandatory injunction to trim trees that obstruct views in violation of deed restrictions.  Ezer v. Fuchloch (1979) 99 CA3d 849, 160 CR 486.

WHEREAS, California Civil Code section 5975. Entitled Covenants and Restrictions in Declaration-Enforcement states at Section (a) “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development.  Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”

WHEREAS,  Enforcement of Article V, Section 7 generally benefits only one property owner, rather than the entire Association;

WHEREAS, nothing in these guidelines or procedures is intended to limit the authority of the Association;

NOW THEREFORE, BE IT RESOLVED that the Board of Directors of this corporation does establish and adopt the following guidelines for the processing of all view impairment applications submitted to the Association  and  restating the  policy that enforcement of Article V, Section 7, opinions established  by PVHA shall be done by individual members.

The following words, phrases and terms shall have the following meaning ascribed to them.

The date when a view was obstructed is not mentioned in Declaration No. 1 and is not material.

  1. “Cutting back trees or other plantings” means trimming of the necessary portions of a tree or planting to restore a view.
  2. “Maintain and improve the view of” means one or more areas of view; and does not mean an unobstructed view.
  3. “View” means primary view from a principal residence and any immediately adjoining patio or deck area at the same elevation as the residence which consists of a visually impressive scene or vista such as a scene of the Pacific Ocean, off-shore islands, city lights of Los Angeles basin, or the mountains.
  4. “View Impairment” means a significant interference with and obstruction of a view by landscaping, trees or any other vegetation.
  5. “Adjoining Property” means close, next to or in contact with one another.  [Welch v. Kai (1970) 4 CA3d 374, 84 CR2d 619.]  PVHA interprets Article V, Section 7 to apply to properties that adjoin the applicants property; or directly across a street.

WHEREAS, the Association wishes to establish procedures for its members to utilize the authority of the Association to correct view impairments, which cannot be resolved between the parties;

WHEREAS, the Association has retained the services of a professional mediator;

WHEREAS, enforcement of a PVHA decision to remove a view obstruction of PVHA generally benefits only one member; not the entire Association;

NOW THEREFORE, BE IT RESOLVED that the Board of Directors of this corporation does establish and adopt the following procedure for the processing of all view impairment applications submitted to the Association, and a policy that enforcement of view restoration decisions of PVHA shall be done by individual members not PVHA.

The following are general policies of the Association:

  1. The applicant shall submit information on an application form provided by the Association.
  2. The applicant shall be required to document efforts to resolve the obstruction issue with his neighbor including copies of all correspondence between the parties.
  1. The applicant shall pay an administrative application fee to the Association at the time an application is submitted.  PVHA shall set the fee from time to time to reflect the expense to PVHA associated with said applications.
  2. The applicant shall execute a financial responsibility agreement with the Association at the time an

application is submitted.

A. The applicant must agree to pay the entire cost of the initial trimming or removal of trees or shrubs.

B. The applicant must agree to reimburse the Association for its fees and expenses related to the application particularly if PVHA is named as a defendant in a lawsuit.

5.  If the owner appeals, as a condition of the appeal:

A. The owner must pay an administrative appeal fee to the Association, at the time the appeal is filed. PVHA will set the fee from time to time to reflect the expense to PVHA associated with the appeal.

B. The owner must execute a financial responsibility agreement and the owner must agree that if after a hearing and decision by the Board of Directors, if PVHA is named in litigation related to the Board decision the Owner will pay PVHA expenses and fees.

6. The Association will send a Notice to the owner of the property where the vegetation is located, (“affected

property”).

7. The Notice will inform the owner of the affected property of the action requested in the application; and that a mediator will be appointed.

8. The mediator and the parties may make reasonable efforts to mediate and reach an agreement between the applicant and the owner of the affected property; however, if the parties cannot agree, the mediator will prepare a written advisory opinion.

9. A copy of the advisory opinion shall be mailed to the applicant and owner of the affected property along with a notice that the opinion will become the opinion of PVHA unless the applicant or the owner appeal to the Board.

10. The Board shall review the advisory opinion to assure that it is not arbitrary or unreasonable. The advisory opinion shall constitute the opinion of the PVHA unless either party appeals the decision to the Board and pays the appeal fee within thirty (30) calendar days of the mailing of the decision.  The appeal fee will be set from time to time to reflect the expenses related to the appeal.

11.  If the advisory opinion is appealed; The Board will hold a de novo hearing; the Board will hear the evidence and arguments of the parties and make an independent decision based on the presentations of the applicant and affected party.

12.  It is the policy of PVHA to implement decisions without undue delay.  If a decision is appealed to the Board, PVHA will put the appeal on a Board agenda, and both parties will be notified of the date of the Board hearing of the appeal.  The appealing party must appear or give PVHA 10 days notice of a request that the appeal be continued until the subsequent Board meeting.

13. No more than one continuance will be granted. If the appealing member fails to appear at the continued hearing, the appeal will be denied.

14. It has been the experience of PVHA, that trimming requires the cooperation of the owner or a court order. The applicant and the owner of the affected property shall have the right and responsibility to schedule the trimming. The final act in the process for PVHA is to establish an opinion that the applicant may seek to enforce.  PVHA will not be involved in scheduling trimming on behalf of the applicant; or any effort to enforce the provisions of Article V Section 7.

15. If any further action up to and including filing a lawsuit, is necessary to schedule the trim or to otherwise enforce the PVHA opinion, the applicant or the owner shall have the exclusive right and responsibility to pursue whatever means they deem appropriate and legal.

PASSED, APPROVED AND ADOPTED this 24th  day of July, 2018

 

RESOLUTION  NO. 177

RESOLUTION OF THE BOARD OF DIRECTORS OF

THE PALOS VERDES HOMES ASSOCIATION

ADOPTING NEW ELECTION RULES

WHEREAS, Article III OF THE BY-LAWS OF PALOS VERDES HOMES ASSOCIATION STATE:

“The corporate powers of this corporation shall, except as otherwise provided herein, be vested in a Board of directors who shall be members of this corporation, and three shall constitute a quorum for the transaction of business…”

WHEREAS, The Association wishes to adopt rules for the conduct of nomination and election to the Board of Directors;

WHEREAS, the Association has received and considered materials from members; and attorneys retained by the Board of Directors; and held discussions at public meetings;

NOW THEREFORE, BE IT RESOLVED that the Board of Directors of this corporation does establish and adopt the following rules for the conduct of elections:

  1.  “A member can be nominated for the Board by a petition delivered to an officer of the corporation, signed within 11 months preceding the next time directors will be elected representing the following number of votes: one-twentieth of 1 per cent of voting power, but not less than 100.”
  2. “Nominations for the Board of directors shall close 120 days before the date the directors are to be elected. No nominations for the Board can be made after 120 days before the date directors are to be elected.
  3. “All voting will be by secret ballot.  Ballot and one preaddressed envelope with instructions on how to return ballots shall be mailed by first class mail not less than 30 days prior to the deadline for voting.  In order to preserve confidentiality, a voter may not be identified by name, address, or lot or parcel number on the ballot. The Association shall use as a model those procedures used by California counties for ensuring confidentiality of vote by mail ballots, including the following:
    1. The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed.  This envelope is inserted into a second envelope that is sealed. On the second envelope will be the voter’s name(s), and the address or separate interest that entitles the voter to vote.  The Voter shall sign that envelope for purposes of verification.
    2. The second envelope is addressed to the inspector of elections, who will be tallying the votes.  The envelope shall be mailed to a location specified by the inspector of elections.”

“The Bylaws of the Palos Verdes Homes Association provide for staggered terms.  At the next annual meeting, where a quorum of PVHA members is reached, nominated candidates will be elected for terms based on the highest vote getter filling the longest term available. Board-recommended incumbent candidates will be elected based on terms from the last qualified election.  This procedure shall be followed until all of the 3, 2 and 1 year terms on the ballot are filled.

PASSED, APPROVED AND ADOPTED May 24, 2016

RESOLUTION NO. 179

RESOLUTION OF THE BOARD OF DIRECTORS OF
THE PALOS VERDES HOMES ASSOCIATION
ADOPTING ELECTION RULES

WHEREAS, ARTICLE III OF THE BY-LAWS OF PALOS VERDES HOMES ASSOCIATION STATE:

“The corporate powers of this corporation shall, except as otherwise provided herein, be vested in a Board of directors who shall be members of this corporation, and three shall constitute a quorum for the transaction of business…”

WHEREAS, ARTICLE IV Section 3(f) OF THE BY-LAWS OF PALOS VERDES HOMES ASSOCIATION STATE:

“ The directors shall have the power: To make all needful rules and regulations for the conduct of the election, for the prevention of fraud in elections and for the recount of the ballots in case of doubt or fraud”;

WHEREAS, The Association has adopted rules for the conduct of nomination and election to the Board of Directors;

WHEREAS, The Board wishes to supplement the rules to facilitate the election procedures and prudently manage the expenses related to the election.

NOW THEREFORE, BE IT RESOLVED that the Board of Directors of this corporation does establish and adopt the following rules for the conduct of elections:

1. “Incumbent directors and nominees will be listed on the PVHA website along with their qualifications. Biographic materials establishing qualifications of 400 words or less may be submitted to the PVHA for posting on the PVHA website 30 to 45 days before the Annual Meeting. Campaign messages should not be included in the submittal and only biographic qualification information will be posted.

2. “The last date for a ballot to be received and counted for any purpose shall be 4:30 pm the Wednesday prior to the Second Tuesday in January;”

3. “If the number of ballot envelopes received is less than the number to establish a quorum for a meeting to elect directors; PVHA shall not expend funds to open and count the ballots; since no meaningful purpose would be served by such expense; “

4. “The envelopes shall be held for safekeeping for one year as directed by the Inspector of Elections.”

PASSED, APPROVED AND ADOPTED September 9, 2016