HOA says can't park trucks in driveways
mm
restricted community in Odessa, was trying to keep A.J. Vizzi from
parking his Ford pickup truck in his home's driveway. HOA rules state
all trucks must be parked in a garage."
Judge renders declaratory judgment in favor of truck owner, says HOA
is insane and must pay about $100,000 in legal fees. Take drug test.
http://www.tampabays10.com/news/mostpop/story.aspx?storyid=96159&provider=top
Mike Jacobs
> "[FLORIDA] The board of directors representing The Eagles, a deed
> restricted community in Odessa, was trying to keep A.J. Vizzi from
> parking his Ford pickup truck in his home's driveway. HOA rules state
> all trucks must be parked in a garage."
This is a very common rule in the Home Owner's Association (HOA)
bylaws and covenants of upscale Planned Unit Development (PUD)
communities. The rationale is to preserve property values by keeping
"tradesman"-type and utilitarian vehicles out of sight. Many PUD
bylaws also forbid parking of boat trailers, utility trailers,
motorhomes and other RVs, etc. within the development except in an
enclosed garage. The entire city I live and work in (Columbia, MD)
is a PUD that does just that. The U-Stor-It type places around here
(there are several competitors) do a bang-up business storing people's
boat trailers and campers.
The HOA's rules were doubtless in place when Vizzi bought his home in
the community, and were provided to him in writing before he settled
escrow, as part of the deed and title documentation, being covenants
running with the land which restricted his use of the land. While he
apparently then complained that the rules he bought into were unfair,
his flouting of the rules is what is unfair to all his neighbors, who
are in compliance with the rules for their mutual benefit, and whose
neighborhood now has Vizzi's pickup truck parked in it.
Next thing you know, Vizzi will want to be able to put his truck up on
cement blocks with the wheels off, leave junk in his unmowed yard
behind a chain link fence, and keep his old rusty fridge and washing
machine on the front porch, along with the old tires turned inside out
and painted white he wants to use for planters. I have never been to
The Eagles in Odessa, Florida, but I can assure you sight unseen that
this is not the image his community is trying to project. There is no
logical difference between those restrictions and the one on open
overnight parking of pickup trucks, to my eye. The erosion of
covenant protections that has begun with judicial rejection of this
rule will eventually turn Nob Hill into Dogpatch.
> Judge renders declaratory judgment in favor of truck owner, says HOA
> is insane
One could perhaps make that assessment of His Honor too, especially in
light of his substituting his own feelings of what is good and bad in
HOA bylaws (obviously, he feels this is a stupid rule, and there are
probably many, including most pickup truck afficionados, who would
agree with him) for what THE LAW says the HOA is PERMITTED to include
in its bylaws, if duly enacted and made a part of the land covenants
as I'm sure in this case it was. The legal question the judge was
faced with was NOT, "What would I do if I were on the HOA board, i.e.
do I think this is a good rule or not?" but rather, "No matter how
weird I think it is, is this rule something the HOA is legally
permitted to enforce, so long as all homeowners in the affected area
have signed on to it when they bought their property?"
Freedom of contract is the vital legal principle at stake here, and
most legal commentators agree the goverment should not interfere in
parties' privately agreed contractual arrangements unless those terms
seriously conflict with public policy, to the extent that their
enforcement would be unconscionable. This judge just threw that very
important baby out the window along with the bathwater of a perhaps
silly, but not exactly fundamentally unconscionable, rule restricting
open parking of pickup trucks in an upscale community. Such drastic
judicial intervention should be reserved for covenants that really
_do_ conflict with public policy and shock the conscience, such as
racially restrictive covenants (shot down by SCOTUS in the 1947
Shelley v. Kraemer case).
> and must pay about $100,000 in legal fees.
A sanction which I have little doubt the HOA will promptly appeal.
> Take drug test.
Huh? Speak full sentence. No dig fragment. Who be subject?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
TheMightyAtlas
> The HOA's rules were doubtless in place when Vizzi bought his home in
> the community, and were provided to him in writing before he settled
> escrow, as part of the deed and title documentation, being covenants
> running with the land which restricted his use of the land. Â While he
> apparently then complained that the rules he bought into were unfair,
> his flouting of the rules is what is unfair to all his neighbors, who
> are in compliance with the rules for their mutual benefit, and whose
> neighborhood now has Vizzi's pickup truck parked in it.
Mike,
You might be going a little too far here. The restrictive covenants
may have been in place, but I am sure you know that these are
sometimes quite vague and open to interpretation. What the judge found
in this case is that the *interpretation* was unreasonable, and that
by not objecting for four years they had pretty much forfetied their
right to object, unless they actually changed the regulations by
whatever means the covenants specify the rules can be changed.
You can read the entire order here:
http://www.tampabays10.com/images/pdfs/pickup-truck-lawsuit.pdf
Based on the sections excerpted by the judge in the order it appears
that the regulations explicitly only prohibit the parking on driveways
of vehicles used primarily for commercial purposes. I think you know
perfectly well that millions of people in the USA use pick-up trucks
as personal vehicles, and do not use them for commercial purposes
ever, never mind primarily.
Furthermore, the covenants themselves require the HOA to interpret the
regulations minimally. I can't see how ignoring the qualification
"which are used for commercial purposes" can be considered a minimal
interpretation.
Now if the homeowner had started parking his bucket truck there and
claimed that this was his personal vehicle you might have a point
regarding the slippery slope. But of course you can distinguish
between a commercial and personal vehicle quite easily in the law, not
least by the type of registration, in most states. Even if someone
managed to get a bucket truck, fire engine, cement mixer or even a 30
passenger bus registered as a personal vehicle, and try to park it on
the driveway, I would expect the HOA to prevail in that legal battle.
But that is why we have judges.
I can't find any place where the order referring to legal fees. That
seems to be a quote from the defendants lawyer. But if he is going to
bring a claim based on bad faith, you need look no further than the
counterclaim from the HOA, where they claim the court has no
jurisdiction because this is an election dispute! Of course if the HOA
has unlimited authority to interpret the covenants in rule-making,
they can call a motorcycle a truck, right? Then they can call it a
commercial vehicle.
I am not in the least bit opposed to HOAs in principle and practice. I
have served on the BOD of our own HOA. There are few homeowners who
are unreasonable, but there are also over-enthusiastic people on the
architecture, landscaping and other committees who are trying to apply
their personal standards to others, which may not be reasonable. If
the covenants are clear and specific, then sure, you can enforce them.
But if they are being interpreted, the interpretation has to be
reasonable. Having grass nine inches high in the front yard high can
be reasonably termed as failing to "maintain the external appearance
of the property" but not if it is six inches high in a privacy-fenced
back-yard, that no one can see except the neighbors from their second
floor windows or someone in a helicopter.
Barry Gold
>On Dec 17, 7:33 pm, mm <mm2...@bigfoot.com> wrote:
>> "[FLORIDA] The board of directors representing The Eagles, a deed
>> restricted community in Odessa, was trying to keep A.J. Vizzi from
>> parking his Ford pickup truck in his home's driveway. HOA rules state
>> all trucks must be parked in a garage."
>
>This is a very common rule in the Home Owner's Association (HOA)
>bylaws and covenants of upscale Planned Unit Development (PUD)
>communities. The rationale is to preserve property values by keeping
>"tradesman"-type and utilitarian vehicles out of sight. Many PUD
>bylaws also forbid parking of boat trailers, utility trailers,
>motorhomes and other RVs, etc. within the development except in an
>enclosed garage.
>The HOA's rules were doubtless in place when Vizzi bought his home in
>the community, and were provided to him in writing before he settled
>escrow, as part of the deed and title documentation, being covenants
>running with the land which restricted his use of the land.
Objection. Assumes facts not in evidence. It is quite possible that
The Eagles's Board enacted the rule after Vizzi bought in. Now, one
might argue that Vizzi should have been paying attention and objected
at the time the rule was proposed. But "the rules were already there
before you bought the property" isn't a good defense without evidence
to that effect.
>Next thing you know, Vizzi will want to be able to put his truck up on
>cement blocks with the wheels off, leave junk in his unmowed yard
>behind a chain link fence, and keep his old rusty fridge and washing
>machine on the front porch, along with the old tires turned inside out
>and painted white he wants to use for planters.
Obviously you feel strongly about this, and you may be right. But
just because a judge says X is allowed, doesn't mean that Y and Z will
be too.
>> Judge renders declaratory judgment in favor of truck owner, says HOA
>> is insane
>
>One could perhaps make that assessment of His Honor too, especially in
>light of his substituting his own feelings of what is good and bad in
>HOA bylaws (obviously, he feels this is a stupid rule, and there are
>probably many, including most pickup truck afficionados, who would
>agree with him) for what THE LAW says the HOA is PERMITTED to include
>in its bylaws, if duly enacted and made a part of the land covenants
>as I'm sure in this case it was. The legal question the judge was
>faced with was ... rather, "No matter how
>weird I think it is, is this rule something the HOA is legally
>permitted to enforce, so long as all homeowners in the affected area
>have signed on to it when they bought their property?"
This is one of the big problems with HOAs and the reason why I have no
plans to ever buy into one. There is no guarantee that the rules you
see when you buy in won't change in the next five years. (This can
happen in a city, too, but city governments -- especially large city
governments -- have a lot more inertia than HOAs. All it takes is for
the owners to be inatttentive (as they frequently are) and a few self-
important jerks to get elected to the board, and next thing you know
you're fighting them in court just to get the list of owners so that
you can challenge the board in the next election.
This kind of thing showed up about once a month in the Real Estate
section, back when the LA Times _had_ a Real Estate section.
>Freedom of contract is the vital legal principle at stake here, and
>most legal commentators agree the goverment should not interfere in
>parties' privately agreed contractual arrangements unless those terms
>seriously conflict with public policy, to the extent that their
>enforcement would be unconscionable. This judge just threw that very
>important baby out the window along with the bathwater...
You haven't read the judge's opinion. For all you know, he found that
friends of Board members have been allowed to park pickup trucks all
over the place, but they decided to make an issue with Vizzi because
he doesn't get along with the Board President.
>> and must pay about $100,000 in legal fees.
>
>A sanction which I have little doubt the HOA will promptly appeal.
I also find myself wondering about that. How does a simple lawsuit
over a HOA rule mount up 200+ hours of lawyer time? I would think
maybe 20-50 hours would be more believable.
And that's assuming that the CCRs provide for lawyers fees. If not, I
suspect the judge was out of line -- the lawsuit was not so farfetched
as to justify Rule 11 sanctions.
--
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Cy Pres
<mjaco...@gmail.com> wrote:
I'm afraid this post shows that you didn't read the decision which was
posted as a link in the news story we're talking about, and is
available here:
http://www.tampabays10.com/images/pdfs/pickup-truck-lawsuit.pdf
I'll be quoting from it, as it demonstrates a very common behavior
typical of the arrogant, out of control HOAs in operation these days,
which often disregard their own by-laws, remain in office while
refusing to hold elections, and purport to change the rules of the
HOA, without following the rules of the Association.
That is exactly what happened here.
>The HOA's rules were doubtless in place when Vizzi bought his home in
>the community, and were provided to him in writing before he settled
>escrow,
Actually, this is in dispute, and the dispute was resolved in favor of
Vizzi. The Vizzis only received a "Windsor Park Declaration" relating
to the specific sub-part of the community they lived in, and allege
that they never received a copy of the "Eagles Master Declaration," a
document covering the larger set of communities, years after their
purchase. This is, sadly, all too common.
This was found by the court in this case to be undisputed. Therefore,
they were not on notice.
>as part of the deed and title documentation, being covenants
>running with the land which restricted his use of the land. While he
>apparently then complained that the rules he bought into were unfair,
The rules he bought into were the ones he was actually provided a copy
of and upon which he conditioned his purchase of the home.
>his flouting of the rules is what is unfair to all his neighbors, who
>are in compliance with the rules for their mutual benefit, and whose
>neighborhood now has Vizzi's pickup truck parked in it.
I've seen a picture of it. It wouldn't offend any reasonable person
and is not at all out of place in a residential neighborhood. There
is no nuisance or blight to be considered here.
Incidentally, it is NOT the HOA in charge of Windsor Park Association,
where he lives, which is attempting to enforce this agreement against
him. It is an upper level HOA, in charge of the entire set of
communities, which is attempting to enforce it against him.
His actual neighbors have no complaint.
>Next thing you know, Vizzi will want to be able to put his truck up on
>cement blocks with the wheels off, leave junk in his unmowed yard
>behind a chain link fence, and keep his old rusty fridge and washing
>machine on the front porch, along with the old tires turned inside out
>and painted white he wants to use for planters.
This is an absurd slippery slope argument which does not follow
naturally, or at all, from the facts of this case. In fact, he even
modified the particular pick-up truck model he had to avoid some of
the features that might conceivably offend someone about a pick-up
truck, such as using single tires in the back instead of the double
tires that are usually on the back. He also chose an inoffensive
color. The vehicle is clean and neat, and there's no question of it
being offensive, merely whether it is within a provision of a contract
that is technically enforceable. Nobody would be harmed by not
enforcing it in any cognizable fashion.
>I have never been to
>The Eagles in Odessa, Florida, but I can assure you sight unseen that
>this is not the image his community is trying to project.
If "his community" is the neighborhood he's actually living in,
Windsor Park, that community has no objection whatsoever.
>There is no
>logical difference between those restrictions and the one on open
>overnight parking of pickup trucks, to my eye. The erosion of
>covenant protections that has begun with judicial rejection of this
>rule will eventually turn Nob Hill into Dogpatch.
There is no "erosion" of covenant protection in a court not holding
people to agreements they never agreed to.
>> Judge renders declaratory judgment in favor of truck owner, says HOA
>> is insane
>One could perhaps make that assessment of His Honor too, especially in
>light of his substituting his own feelings of what is good and bad in
>HOA bylaws (obviously, he feels this is a stupid rule, and there are
>probably many, including most pickup truck afficionados, who would
>agree with him) for what THE LAW says the HOA is PERMITTED to include
>in its bylaws, if duly enacted and made a part of the land covenants
That's exactly the point. It was NOT made part of any agreement the
homeowner signed or was even made aware of. While there are cases
when a person is constructively put on notice as to the likelihood of
a contract by the circumstances, and indeed, this would be such a case
had the homeowner never received any paperwork at all. However, in
this case, there were two separate documents, both contracts. The
purchaser was only provided with one. The other was only provided
years later, and only years after that did they attempt to enforce it
against him. There's a very real question of detrimental reliance on
their inaction, even had the purchaser ever agreed to the Eagles
Master Declaration in the first place, which he didn't.
In this case, also, the party who drafted the entire set of legal
documents was also the party who failed to provide the document they
sought to enforce against the homeowner. It was not unreasonable for
the homeowner to rely on the drafter of the contracts to provide
anything to which he would be bound when he signed an agreement with
them. This isn't a case where the homeowner should have been required
to do extensive research on his own to figure out what easements,
covenants, servitudes, etc. were running with the property.
>as I'm sure in this case it was. The legal question the judge was
>faced with was NOT, "What would I do if I were on the HOA board, i.e.
>do I think this is a good rule or not?" but rather, "No matter how
>weird I think it is, is this rule something the HOA is legally
>permitted to enforce, so long as all homeowners in the affected area
>have signed on to it when they bought their property?"
>Freedom of contract is the vital legal principle at stake here, and
I fail to see how "freedom" of contract is protected by forcing people
into contracts they never agreed to, then enforcing those contracts
against them against their will.
>most legal commentators agree the goverment should not interfere in
>parties' privately agreed contractual arrangements unless those terms
>seriously conflict with public policy, to the extent that their
>enforcement would be unconscionable. This judge just threw that very
The court did NOT find the contract unenforceable. The court resolved
an ambiguity in the construction of the contract(s) in favor of the
non-drafting party. This is something courts often do when having to
resolve a contractual dispute.
>important baby out the window along with the bathwater of a perhaps
>silly, but not exactly fundamentally unconscionable, rule restricting
>open parking of pickup trucks in an upscale community. Such drastic
The only rule to which the homeowner had agreed was in the Windsor
Park agreement, which only prohibited parking vehicles in the driveway
which are "primarily used for commercial purposes." It said nothing
about pick-up trucks. The Eagles Declaration, the one that was never
provided to the homeowner, did list pick-up trucks as impermissible.
The Eagles Declaration also arguably forbids trucks in general from
being parked in driveways. If this were true, then all the residents
would be forced to get rid of their SUVs, which are, apparently, also
considered legally to be "trucks." A fine kettle of fish that would
be.
Even had the homeowner been provided with both agreements, and it is
undisputed he was not provided with the Eagles Declaration, the two
terms dealing with parking contradict each other, and require
resolution by the court. Given that the drafters of the Eagles
declaration and the drafters of the Windsor Park Declaration are the
same parties and had complete control of the contents of both
contracts, it is entirely reasonable to resolve ambiguities in the
contract in the favor of the non-drafting party against whom
enforcement is being sought.
In addition, another term in the Eagles Declaration describes the
purpose of the contract and its preferred construction, which is that
enforcement of the rules is "to be kept to a minimum, and applied
with discretion and only as necessary for the protection for the
interest [sic] of the entire community." Indeed, this is in line with
Florida case law, which states that "[R]estrictive covenants are not
favored and are to be strictly construed in favor of the free and
unrestricted use of real property" and "any doubt as to the meaning of
the words used must be resolved against those seeking enforcemnet."
Wilson v. Rex Quality Corporation, 839 So.2d 928,930 (Fla. 2d DCA
2003) (quoted from the ruling).
Further, the pick-up truck enforcement action is solely a choice of
the Eagles. The Windsor Park community is not involved at all. The
homeowner's actual neighbors did not object to his vehicle. The
homeowners association with the closest relation to the homeowner, the
Windsor Park HOA, has no objection to the vehicle. It is absurd to
argue that aggressively pursuing this inoffensive vehicle is in "the
interest of the entire community." In fact, the pursuit has cost them
$100,000 of their adversary's legal fees, their adversary's legal
costs, as well as their own legal fees and costs, all of which will be
tolled against the residents of the community. This is an incredible
waste of resources which the HOA was obligated to spend for the
benefit of the community.
It's basically been an exercise in jackassery from the word go,
heavy-handed control freak behavior by an HOA, based on extremely
shaky legal grounds, without the best interest of the community at
heart. The vindictive and highly expensive pursuit of a technicality,
on which they're legally wrong for that matter, against an innocent
homeowner, could even be seen as a breach of fiduciary duty on the
part of the Eagles.
This isn't all. Even if the contract in question were enforceable
against this homeowner, there are doubts as to whether the officers of
the homeowner association in question were even duly elected. If they
were not duly elected, they have no business issuing fines or
enforcing rules against anyone. The plaintiff homeowner alleges that
the board has failed to hold elections at all, as required by the
bylaws, and that therefore, the current holdover board has no legal
right to hold office. This part of the suit is stayed pending
administrative proceedings on the same issue.
Now, I don't know about Florida, but in New Jersey, circumstances like
this are all too common. HOAs routinely disregard their own Bylaws,
the methods prescribed for amending the Bylaws, and engage in petty
vendettas against individual homeowners. Even when there are
elections, they are often either outright rigged or otherwise crooked,
as the standing board attempts to use its control of HOA resources to
lock competing candidates out of the process. It's hard to understand
how such a corrupt regime can really be reconciled with vigorous
enforcement of often vague and ambiguous covenants, especially when
they are selectively and whimsically enforced. HOAs owe a certain
amount of democratic process, both under the law and by their own
bylaws, to the residents of the communities they purport to serve.
This case is a classic example of abusive behavior by an HOA.
>judicial intervention should be reserved for covenants that really
>_do_ conflict with public policy and shock the conscience, such as
>racially restrictive covenants (shot down by SCOTUS in the 1947
>Shelley v. Kraemer case).
>> and must pay about $100,000 in legal fees.
>A sanction which I have little doubt the HOA will promptly appeal.
I have little doubt of it, either, but if you'd actually read the
decision, you might see that the HOA was just wrong here. I'm not
sure whether the homeowner is entitled to legal fees, and that's
likely to be a fairly technical issue rooted in Florida law, so I have
no idea whether they'd win on that.
I am pretty certain, however, that the homeowner was in the right and
that the court came to the correct decision in this case. I believe
that in New Jersey, the homeowner would be entitled to fees due to
their behavior in pursuing objectively unreasonable legal arguments.
Daniel R.Reitman
<mjaco...@gmail.com> wrote:
>On Dec 17, 7:33 pm, mm <mm2...@bigfoot.com> wrote:
>> "[FLORIDA] The board of directors representing The Eagles, a deed
>> restricted community in Odessa, was trying to keep A.J. Vizzi from
>> parking his Ford pickup truck in his home's driveway. HOA rules state
>> all trucks must be parked in a garage."
>
>This is a very common rule in the Home Owner's Association (HOA)
>bylaws and covenants of upscale Planned Unit Development (PUD)
>communities. . . .
>The HOA's rules were doubtless in place when Vizzi bought his home in
>the community, and were provided to him in writing before he settled
>escrow, as part of the deed and title documentation, being covenants
>running with the land which restricted his use of the land. While he
>apparently then complained that the rules he bought into were unfair,
>his flouting of the rules is what is unfair to all his neighbors, who
>are in compliance with the rules for their mutual benefit, and whose
>neighborhood now has Vizzi's pickup truck parked in it.
>. . . .
A quick look at Fla. Stat. งง 720.303 and 720.3035 raises questions
whether the powers of the HOA extend to conduct, as opposed to
structures, under Florida law.
Daniel Reitman
grendal
> On Dec 17, 7:33 pm, mm <mm2...@bigfoot.com> wrote:
> > and must pay about $100,000 in legal fees.
>
> A sanction which I have little doubt the HOA will promptly appeal.
>
Note to Mod. I clipped a lot of the prior message to keep you happy.
Mike,
I don't know if you woke up on the wrong side of the bed, or this case
struck a raw nerve.
http://www.tampabays10.com/news/mostpop/story.aspx?storyid=96159&prov...
[This was the link to the newspaper article that may have gotten
munged by Google.]
I agree with you that members of a HOA yield a lot to the
associations. I can also say that HOA boards can easily become power
hungry and use the rules and regs to be vindictive and harass
association members that they don't like. Fiscal responsibility goes
out the window when they want to persecute an individual.
With respect to this case, the article shows a picture of the truck.
Its a regular 4 door pickup and not a utility truck or van.
Again we don't know all the facts presented. Clearly the judge must
have felt that the board was wrong in how they handled the
enforcement.
As to the 100,000 USD, that wasn't a punitive award but reimbursement
of legal fees. I've seen legal cases concerning dog ownership with
legal fees exceeding $100K so its not uncommon, especially if the
board is being petty and vindictive.
Cy Pres
wrote:
>>> and must pay about $100,000 in legal fees.
>>A sanction which I have little doubt the HOA will promptly appeal.
>I also find myself wondering about that. How does a simple lawsuit
>over a HOA rule mount up 200+ hours of lawyer time? I would think
>maybe 20-50 hours would be more believable.
I've personally seen multiple cases in which legal fees have amounted
to multiples of this sum, and I don't even have my license yet.
phil-new...@ipal.net
OTOH, if _all_ the homes for sale have the same rule, and you cannot find
a home to buy without that rule, then there is a definite problem with it
in some form.
What if every restaurant in town required men to wear ties? Such a rule
is very appropriate in a restaurant that wishes to serve a limited clientele.
But such a rule would be very inappropriate if it were practiced by all the
restaurants. I would argue that if _all_ home developments had a certain
specific rule, and if that were were "insane" _in_ the context no one having
any choice but to sign on to this, then the ruling may be in the right
direction. Public policy should be sure people have choices. This really
should be solved in the political arena. But the party on the right sure
seems to like things without choice, while the party on the left is all
about choice, as long as it is their choice.
So how much choice does exist in Columbia, MD, home developments with respect
to what covenants are, or are not, involved?
--
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Mike Jacobs
> On Dec 18, 11:43Â am, Mike Jacobs <mjacobs...@gmail.com> wrote:> On Dec 17, 7:33 pm, mm <mm2...@bigfoot.com> wrote:
> I don't know if you woke up on the wrong side of the bed, or this case
> struck a raw nerve.
Boy, we sure jiggled a hornet's nest here, didn't we?
No, I am not an anti-pickup fanatic or believer that HOAs can do no
wrong. As both a homeowner and as a lawyer representing other clients
I have had my own disputes with various of our local HOAs which I
won't go into here. I have also served on the board of one, so I've
seen the issues from both sides. My master HOA (the only one I am
subject to at the moment, as I live in a single family house within
the Columbia New Town PUD zoning area and not an embedded condo or
townhouse development with its own separate HOA) does not ban
pickups. Two of my neighbors on my cul-de-sac own pickups and park
them on the circle, and I have borrowed them at times to transport my
motorcycles. And you may note that in my original response to MM's
post, I said more than once that I thought the HOA's decision to ban
pickup trucks was perhaps silly and overreaching. Just so you know
where I'm coming from.
> http://www.tampabays10.com/news/mostpop/story.aspx?storyid=96159&prov...
> [This was the link to the newspaper article that may have gotten
> munged by Google.]
No, I did not read the news article, nor the original judicial
opinion. As you suspect, Google munged my link. I was only
commenting on the bare summary of the case that MM provided in his OP
on this thread.
> I agree with you that members of a HOA yield a lot to the
> associations. I can also say that HOA boards can easily become power
> hungry and use the rules and regs to be vindictive and harass
> association members that they don't like. Â Fiscal responsibility goes
> out the window when they want to persecute an individual.
No disagreement here. As always in law, "it depends" on all the
facts, and my comments to MM were predicated on an "all other things
being equal" assumption, there being no indication in his post that
the HOA was acting unreasonably, or vindictively, or outside of its
granted powers, simply because it was trying to enforce a rule that
banned (according to MM) open overnight parking of "all trucks,"
period.
> With respect to this case, the article shows a picture of the truck.
> Its a regular 4 door pickup and not a utility truck or van.
OK. Now that I have read the article, and the judicial opinion, it
appears the judge properly chose a limited construction of an
ambiguous provision that, in the master covenants, banned open parking
of all "trucks _or_ vehicles which are used for commercial purposes"
but in the homeowner's subdivision's covenants only banned vehicles
actually "primarily used for commercial purposes." The clearer and
more specific local covenant was properly used as an aid in construing
the meaning of the ambiguous master covenant, especially in light of
the principle (cited by MLM netizen Cy Pres in a related post on this
thread) to construe ambiguities in a document against the party who
drafted it.
I agree with the judge that it is eminently reasonable to draw the
enforcement line as falling between _actual_ "commercial use" vehicles
and those which merely _could_be_ used commercially, since the latter
would exclude almost any vehicle -- sedans, station wagons, minivans
as well as pickups can be either commercial or personal, depending on
their actual use. Just ask any Amway distributor with a white
Cadillac and a magnetic red-white-and-blue Amway sign stuck on the
door, or any Mary Kay distributor with a pink one and a Mary Kay decal
on the back window, or the multitude of businesses (at least around
here) that paint their names and logos on attention-getting VW Bugs or
Mini Coopers or Chrysler PT Cruisers. The IT-for-hire firm "Rent-A-
Geek" is one that comes to mind.
Query how the legions of such vehicles would fare in The Eagles under
their HOA rules.
> Again we don't know all the facts presented. Clearly the judge must
> have felt that the board was wrong in how they handled the
> enforcement.
The opinion attached to the news article did not address the sanctions
issue at all, so far as I was able to tell in a cursory but complete
reading -- and no, I'm not going to read it multiple times just to
find something I missed, no one's paying me to do that and it doesn't
feel like fun right now. I assume the attorney fee sanction was (or
will be) set in a separate opinion, and still have no idea of the
basis of that ruling.
> As to the 100,000 USD, that wasn't a punitive award but reimbursement
> of legal fees. I've seen legal cases concerning dog ownership with
> legal fees exceeding $100K so its not uncommon, especially if the
> board is being petty and vindictive.
While I don't doubt it could happen, it's a huge amount to invest in a
dispute like this.
Actually, even if it is "reimbursement" of documented fees, it is
"punitive" as well, since the usual rule in USA is that each party
bears its own legal costs, and fee-shifting is done only for punitive
and deterrent purposes, either by statute in particular types of
cases, or by contract, or by judicial decision where convincing
evidence of bad faith or improper purpose by the loser is shown.
Without knowing more, this does not appear at first glance to be a
civil rights or consumer protection case of the type arising under any
Federal or State fee-shifting statute, but I don't know FL law and I
could be wrong on that and probably am -- the news article seems to
imply that the fee-shifting basis is statutory, but does not indicate
whether any such petition had even been filed yet or whether the judge
had yet made such a ruling. Generally, the judge would have
discretion to cut the claimed amount, once a formal petition for award
of attorney fees is made, if he felt it was excessive under the
circumstances.
In most cases (assuming no statutory basis) it is much more likely
that the covenants themselves contain an "in terrorem" fee-shifting
provision, intended to scare individual homeowners away from
challenging the rulings of the HOA since, in point of fact, the HOA is
usually right (although in this case I agree they were wrong), and the
HOA has far more resources available than the individual homeowner
does and so is more willing to take the risk that it will occasionally
lose and have to pay the fees of a successful challenger.
I'm not going to respond individually to all the other MLM netizens
who have added to this thread, except to say here that I really don't
disagree with anything any of you have said to date, as I hope the
above will explain. But we sure got a discussion going again, huh?
Welcome back, MLM, all'a youse.
Mike Jacobs
> OTOH, if _all_ the homes for sale have the same rule, and you cannot find
> a home to buy without that rule, then there is a definite problem with it
> in some form.
If we were talking about an entire state, or even an entire county,
and this were a governmentally imposed rule with no loophole, you may
have something there. But we are talking about a private development
which, at one time, was vacant farmland or such, and which became a
housing development only when the original landowner subdivided his
property, filed and got governmental zoning approval (if needed) for a
plat of lots and streets to be built thereon, and then sold the
individual lots for building of homes, which (in our example) came
with a restrictive architectural covenant already attached before the
first builder nailed up a single 2x4 or the first homeowner bought
in. So long as those covenants are not invidiously discriminatory,
intended or with the effect of keeping out members of certain ethnic
groups or other "undesireable" residents, there is pretty broad
latitude to the freedom of contract here. I guess the real question
is, how BIG of a development can have such restrictive rules, before
it becomes so big that people planning to move into the general area
have no real choice but to accept the HOA and its rules? I am not
aware of any HOA or PUD, anywhere, that has even come close to that
critical size. (See below discussion in answer to your question about
my hometown, Columbia).
> What if every restaurant in town required men to wear ties?
What if there were only one restaurant in town, and it had such a
rule? So what? If they want to try to be an upscale bistro, are the
residents allowed to turn it into a roadhouse honky-tonk because
that's what they prefer? No, those who don't like its ambiance can
drive to the next town to eat out, or can cook at home, or can open
their own competing restaurant (which is likely to do a much better
business, if no one in town likes wearing a tie). Now, if the local
Restaurant Association tried to prevent a willing, competing
restaurateur from opening a Joe's Bar and Grill or a Mom's Home
Cooking down the block from Chez Ritz, we may have a problem --
antitrust, boycotts, that sort of thing -- but that does _not_ imply
that the converse is true. The mere fact that no independent business
has yet seen fit to open an establishment that meets the needs of a
certain niche market should not _force_ an unwilling entrepreneur
aiming at a different market to change its business plan to meet that
felt need.
Which is one reason, among others (to change the subject slightly), I
do not like rules such as the Corporate Average Fuel Economy (CAFE)
standards imposed on carmakers. They built large SUVs and other big,
gas-guzzling vehicles during a time of cheap gas because that's what
the majority of USA customers wanted. I personally prefer smaller,
fuel-efficient vehicles for my family, but it is an illusory myth that
there was any huge unmet demand for tiny cars that USA makers refused
to supply. Note that everybody from Nissan and Toyota to Mercedes
and Porsche, for Pete's sake, also got in on the market for big,
powerful SUVs because, at the time, they were selling like hotcakes,
not because GM was trying to ram them down anybody's throats and
"killing" the electric car.
> Such a rule
> is very appropriate in a restaurant that wishes to serve a limited clientele.
> But such a rule would be very inappropriate if it were practiced by all the
> restaurants.
Agreed _only_if_ a group of restaurants got together and conspired to
fix their policies and boycott anyone who tried to balk the system and
fill a different niche. Otherwise, I respectfully disagree, as
discussed above.
> I would argue that if _all_ home developments had a certain
> specific rule, and if that were were "insane" _in_ the context no one having
> any choice but to sign on to this, then the ruling may be in the right
> direction.
Having now read the judicial opinion that started this thread, it
seems it was not based on any such broad "there has to be a choice"
criterion, but simply on construing an ambiguous covenant provision in
a manner that was against the interpretation offered by the party who
drafted it (the HOA) and consistent with a more specific, less
ambiguous and less restrictive provision applicable only to Vizzi's
subdevelopment. Other than the prospect of a $100k attorney-fee-
shifting bill, and the "man bites dog" aspect of the fact that the
homeowner won (usually, the HOA does), there is nothing at all about
the opinion that even seems majorly newsworthy IMO -- such covenant
enforcement suits are common as dirt.
> Public policy should be sure people have choices.
Not quite; but I agree that public policy should be leery of and
probably block any private actor who tries to _restrict_ people's
ability to choose what they want in a free market, among the choices
that the law allows to anyone (e.g. no one has a "right" to choose
lead-painted toys if the government has banned them as a danger to
public health). That's subtly, but importantly, different from
actively promoting choice and requiring each participant in the market
to offer a complete range of choices. If I as a business want to
target a certain niche market only, there's nothing wrong with that,
so long as I do not try to prevent others from targeting my market
too, or from targeting different markets. See my discussion above
about CAFE rules. Back when gas was cheap, no one took away people's
choice to buy small, efficient cars; most people just didn't want
them. The government policy to "enforce" choice by "making sure"
people had the choice of a small car was misguided and actually did
nothing but force carmakers to stop making very many large, American-
style sedans and station wagons (virtually extinct for years now) and
shifting their production over to making "truck"-type SUVs and
minivans instead, so as to give buyers the roomy, bigger-than-5-
passenger, towing-capable family vehicles their families needed (or
thought they needed), because by regulatory definition such vehicles
were not subject to the CAFE regulations applicable to passenger
cars. Another example of the natural law of unintended consequences
at work, if you ask me.
> This really should be solved in the political arena.
If by that you mean, all land use restrictions should be imposed only
by public zoning regulations imposed by a governmental entity after
public debate and comment and subject to majority vote, and that any
more-restrictive HOA covenants should be forbidden, I respectfully
disagree. Private covenants have their place, and can be used to
create more architectural uniformity and more diligent maintenance of
a development's intended character than zoning laws ever can. What
you are suggesting would be tantamount to barring private clubs and
making everyone congregate only at a pub, where they might not have
any choice in the decor and where everyone is welcome. We don't have
to throw out the baby (the right to freely associate with other like-
minded individuals in an environment of our own choosing) to drain the
bathwater of invidious discrimination, or monopolistic, anti-
competitive business practices, or environmentally harmful, nuisance
land uses, which are the only kinds of circumstances IMO where
government should properly intervene in these kind of private
arrangements.
> But the party on the right sure
> seems to like things without choice, while the party on the left is all
> about choice, as long as it is their choice.
Hah. Nice sound bite, but doesn't stand up to actual analysis. I
pretty much consider myself to be solidly within the ethos of the
party on the left, but that doesn't mean I'm in favor of top-down
central planning dictating every aspect of life. One can see the
virtue of allowing private desires, and natural market forces aimed to
meet those desires, to self-regulate to a major extent, while still
seeing the need for active, even intense regulation of areas where
major distortions are caused in those market forces by anti-
competitive, discriminatory, or socially undesirable (e.g.
environmentally harmful) causes. It's not a black-and-white issue,
and I _do_ agree that, at least in the most recent administration, the
party-on-the-right was more interested in _removing_ the right to
choose from anyone who was not just-like-them, trying to enforce a
false lockstep togetherness of belief that in fact belies the American
way of allowing a wide variety of faith communities and other social
groups to follow their own drummers. Yes, it is all about choice.
That's what makes this a great country.
> So how much choice does exist in Columbia, MD, home developments with respect
> to what covenants are, or are not, involved?
Well, you can Google us, I'm sure there's a lot about our town on the
Web and I will not try to re-hash it in any great detail. Suffice it
to say that in the mid-1960's, one Jim Rouse, head of the Rouse
Company, which up to that time was mainly a successful local shopping-
mall developer, had a vision of a large planned community that would
be an island of equal-opportunity access and rational city planning,
in a state that was still in the throes of the Civil Rights
revolution, still largely divided along ethnic-neighborhood lines, and
still largely blighted by environmentally disastrous, Rust Belt heavy
industry; that new community he envisioned would intermix, in an
environmentally friendly and compatible way, various types of housing
(apts., multifamily rowhouses, and single-family-detached) along with
islands of commercial and industrial-park use, not just be another
bedroom suburb.
The town plan would place these dwellings on relatively small and
close-together lots with clustered mailboxes to enhance
neighborliness, as a quid pro quo for setting aside major parts of the
land area (also mingled throughout the new development, mainly around
the natural watercourses, which for the most part were not to be paved
over and culvert-ized) as open space parkland in perpetuity, with
paved foot- and bike-paths through the wooded open space of the stream
valleys to ease getting places on foot and for recreational purposes.
Each apt. complex, townhouse development, or condo within the larger
New Town area also had its own local HOA or Tenant's Association to
set its own local rules.
To bring this theoretical model to reality, the developers had to get
approval from the County to create an entirely new zoning category,
which we here call "New Town" zoning, that waives the lot-size
minimums applicable to residential zoning in the rest of this formerly-
rural county and permits the New Town developer (formerly Rouse, since
bought out by Chicago-based General Growth Properties) in conjuction
with a resident-elected board (our master HOA, the Columbia
Association), to set its own master development plan.
For the most part, and although it has in the last 40+ years settled
down to be in many ways pretty much just another small satellite city
in the orbit of Baltimore and Washington, DC, the original plan
worked, and we (at least some of us) are proud of our unique identity
and accomplishments as an urban planning experiment, one of the first
Planned Unit Developments ever attempted on such a large scale --
there are about 100,000 residents in Columbia New Town zoning out of
around 270,000 in the entire county, and the New Town is nearing the
end of its development, having eventually subdivided nearly all the
raw land that was included in that Zone after 4 decades of steady,
planned growth. I might add that New Town zoning has not hurt our
economic development, either, as Howard County is currently either the
first or second-highest county in the entire USA in per-capita income,
depending on whose poll you ask. Capitalism and socialism, if you
want to put those labels on it, _can_ mix.
But to get back to answering your implied question, in relation to the
issue you first raised as quoted at the top of this reply, there _is_
choice, even here in the People's Republic of Columbia. The New Town
zone does not fill the entire county, and is not even a monolithic
block in the area it does cover, there being several embedded "pre-
Columbian" (ha ha, our private joke) "out-parcels" scattered within
and among the New Town-zoned areas, which have normal zoning rules
applied governmentally, and no restrictive covenants at all. So, if
you want to buy two lots next to each other and build one large house
on them, which you cannot do within the New Town-zoned areas, all you
have to do is buy within a nearby (or embedded) outparcel, and Bob's
your uncle.
Ditto if you want to paint your house flourescent pink, or keep a boat
trailer or RV parked in your driveway, or make some other use of your
property that is not permitted within the New Town zoning. So, there
_is_ a choice. If you don't want to be subject to the New Town
rules, and pay the New Town HOA assessments to the quasi-governmental
Columbia Association (CA), don't buy here, buy in one of the
outparcels. No one is forced to submit to CA rules, but I would be
quite concerned if anyone were to suggest that the CA is somehow
"infringing" on anyone's rights by simply trying to maintain the
character of the New Town as set forth in its master plan, so long as
they do so in accord with their own internal rules and with fair due
process.
Without changing gears too much, let me suggest that this is not the
paradox it seems -- i.e., governmentally-enforced freedom is what
allows us to be restrictive. This is no different in principle from
the idea, going back to the origins of the American experiment, that
voluntary communities (religious, or otherwise) should be allowed to
set their own internal rules, follow a different drummer, etc. without
having to conform to the rules (or lack thereof) of the general
society that surrounds them.
If the Shakers, the Quakers under William Penn, the Catholics under
Lord Baltimore who founded Maryland, the Puritans who came to Plymouth
Rock to escape restrictions on their religious practices in Anglican
England, the Mormons who founded Utah, the Orthodox Jews of Borough
Park in Brooklyn and of Lakewood, NJ, and so on and so forth, had not
been allowed to internally regulate their own communities according to
their own lights, the American experiment would have had a very
different tenor. Such communities, even strictly communal ones such
as monasteries, convents, and hippie communes, are not stepping on the
toes of the different majority by doing so, they are simply carrying
out their own individual freedom of association, worship, and
expression. Ditto Columbia. We don't _force_ you to move out if
you're not a tree-hugging, multi-ethnic, Kumbaya-singing ex-60's we-
will-save-the-world type, but we do require you to follow our covenant
rules if you live in the New Town zone.
phil-new...@ipal.net
| Agreed _only_if_ a group of restaurants got together and conspired to
| fix their policies and boycott anyone who tried to balk the system and
| fill a different niche. Otherwise, I respectfully disagree, as
| discussed above.
OTOH, something approaching that kind of thing actually happens with
housing developments. The standard template of covenants are exchanged.
While it may not literally be "if you stick everyone with this requirement
then I will, too" kind of thing, it certainly is along the lines of "here
is what I'm doing in my development, and you might want to do the same
kind of thing ... he's a copy of mine". Now days things have gone even
beyond that to where covenant packages can be bought by the developers or
their lawyers.
|> I would argue that if _all_ home developments had a certain
|> specific rule, and if that were were "insane" _in_ the context no one having
|> any choice but to sign on to this, then the ruling may be in the right
|> direction.
|
| Having now read the judicial opinion that started this thread, it
| seems it was not based on any such broad "there has to be a choice"
| criterion, but simply on construing an ambiguous covenant provision in
| a manner that was against the interpretation offered by the party who
| drafted it (the HOA) and consistent with a more specific, less
| ambiguous and less restrictive provision applicable only to Vizzi's
| subdevelopment. Other than the prospect of a $100k attorney-fee-
| shifting bill, and the "man bites dog" aspect of the fact that the
| homeowner won (usually, the HOA does), there is nothing at all about
| the opinion that even seems majorly newsworthy IMO -- such covenant
| enforcement suits are common as dirt.
Right. The case referrred to is not one of "no choices". That might
or might not have been a real situation, but it isn't what the court
was asked to decide about.
If you want to serve a niche, that is fine. If every developer wants
to serve the same niche, and the community does not consist of mostly
that niche (well, it wouldn't be much of a niche at that point), it
can be a harm to the community.
I'm guessing you and I have different political opinions of how much
the government can and/or should get involved when a systematic pattern
of business decisions becomes harmful, even if the decisions considered
individually would not otherwise do so.
|> This really should be solved in the political arena.
|
| If by that you mean, all land use restrictions should be imposed only
| by public zoning regulations imposed by a governmental entity after
| public debate and comment and subject to majority vote, and that any
| more-restrictive HOA covenants should be forbidden, I respectfully
| disagree. Private covenants have their place, and can be used to
| create more architectural uniformity and more diligent maintenance of
| a development's intended character than zoning laws ever can. What
| you are suggesting would be tantamount to barring private clubs and
| making everyone congregate only at a pub, where they might not have
| any choice in the decor and where everyone is welcome. We don't have
| to throw out the baby (the right to freely associate with other like-
| minded individuals in an environment of our own choosing) to drain the
| bathwater of invidious discrimination, or monopolistic, anti-
| competitive business practices, or environmentally harmful, nuisance
| land uses, which are the only kinds of circumstances IMO where
| government should properly intervene in these kind of private
| arrangements.
I respect your disagreement. And I actually dislike government imposing
to make everything uniform, although I see benefits in that in many places.
But if what the businesses are doing _systematically_ makes things bad for
the community, then I believe government should step in to change that in
some way. I believe it should make that change in a minimal way. Instead
of outlawing something entirely, effort should be made to find a way to
have choices. If there is a covenant restriction against pickup trucks in
the entire community, it may be going to far for the government to ban all
such covenants. But, it is also wrong for the government to pick and choose
which developments it would ban them and not ban them. Instead, what they
should be doing is finding some middle ground.
If 40% of the people want pickup trucks, and 60% of the people want to ban
pickup trucks, something needs to be worked out. The people that want to
ban them could be the majority if a vote were taken. Our government(s)
were founded under ideas where the majority should not have THAT much power
over others, but that is also a hard concept for government to work with,
too, since otherwise it is supposed to be "majority rules". Ideally, it
should be "majority rules up to not taking away rights of others".
|> But the party on the right sure
|> seems to like things without choice, while the party on the left is all
|> about choice, as long as it is their choice.
|
| Hah. Nice sound bite, but doesn't stand up to actual analysis. I
| pretty much consider myself to be solidly within the ethos of the
| party on the left, but that doesn't mean I'm in favor of top-down
| central planning dictating every aspect of life. One can see the
| virtue of allowing private desires, and natural market forces aimed to
| meet those desires, to self-regulate to a major extent, while still
| seeing the need for active, even intense regulation of areas where
| major distortions are caused in those market forces by anti-
| competitive, discriminatory, or socially undesirable (e.g.
| environmentally harmful) causes. It's not a black-and-white issue,
| and I _do_ agree that, at least in the most recent administration, the
| party-on-the-right was more interested in _removing_ the right to
| choose from anyone who was not just-like-them, trying to enforce a
| false lockstep togetherness of belief that in fact belies the American
| way of allowing a wide variety of faith communities and other social
| groups to follow their own drummers. Yes, it is all about choice.
| That's what makes this a great country.
FWIW, I consider myself to be a "middle of the road extremist".
I do believe the federal (national) government should get involved when
it is a matter of national interest. And I believe it hasn't done that
enough in the past. Taking a peek at the current national crisis, I do
believe it is in the national interest to keep "strategic" manufacturing
capability in this country, and that includes car (and pickup truck)
manufacturers. But I also see how well paid emplyees are a boost to the
economy.
|> So how much choice does exist in Columbia, MD, home developments with respect
|> to what covenants are, or are not, involved?
|
| Well, you can Google us, I'm sure there's a lot about our town on the
| Web and I will not try to re-hash it in any great detail. Suffice it
| to say that in the mid-1960's, one Jim Rouse, head of the Rouse
| Company, which up to that time was mainly a successful local shopping-
| mall developer, had a vision of a large planned community that would
| be an island of equal-opportunity access and rational city planning,
| in a state that was still in the throes of the Civil Rights
| revolution, still largely divided along ethnic-neighborhood lines, and
| still largely blighted by environmentally disastrous, Rust Belt heavy
| industry; that new community he envisioned would intermix, in an
| environmentally friendly and compatible way, various types of housing
| (apts., multifamily rowhouses, and single-family-detached) along with
| islands of commercial and industrial-park use, not just be another
| bedroom suburb.
In which communities can I place my ham radio antenna up high enough that
it won't mess up poorly engineered TV sets?
| If the Shakers, the Quakers under William Penn, the Catholics under
| Lord Baltimore who founded Maryland, the Puritans who came to Plymouth
| Rock to escape restrictions on their religious practices in Anglican
| England, the Mormons who founded Utah, the Orthodox Jews of Borough
| Park in Brooklyn and of Lakewood, NJ, and so on and so forth, had not
| been allowed to internally regulate their own communities according to
| their own lights, the American experiment would have had a very
| different tenor. Such communities, even strictly communal ones such
| as monasteries, convents, and hippie communes, are not stepping on the
| toes of the different majority by doing so, they are simply carrying
| out their own individual freedom of association, worship, and
| expression. Ditto Columbia. We don't _force_ you to move out if
| you're not a tree-hugging, multi-ethnic, Kumbaya-singing ex-60's we-
| will-save-the-world type, but we do require you to follow our covenant
| rules if you live in the New Town zone.
If they create the community where none existed before, I see little or no
problem with it. Where covenants that are the same in all developments in
a community become an issue is how it affects the choice of people that have
already established roots in the community are affected. They choice is then
to be subjected to someone's change in rules, or leave the community. That
is what I think is bad. If the covenants existed before they came to that
community, that's not much of an issue. Most people buying a new home are
doing so within the same community (or a group of them within several miles).
I don't have problems with rules that say commercial vehicles cannot be
parked in front of homes outside. But I do have a problem with a rule that
says a clean, well maintained (elsewhere), pickup truck, cannot be kept in
front of a house when neighbors are allowed to do the same with a car. A
rule against any vehicle being parked in front would at least be fair. But,
if every development had such a rule, that could be a systematic problem.
Hopefully, it wouldn't happen.
I've had to deal with virtually every development having rules against ham
radio antennas. My answer to that is that the city should declare that the
existance of such a rule adds $1,000,000 to the value of each acre of land
and to tax it accordingly :)
Cy Pres
[Covenants in general and HOAs specifically.]
>If they create the community where none existed before, I see little or no
>problem with it. Where covenants that are the same in all developments in
>a community become an issue is how it affects the choice of people that have
>already established roots in the community are affected. They choice is then
>to be subjected to someone's change in rules, or leave the community. That
>is what I think is bad. If the covenants existed before they came to that
>community, that's not much of an issue. Most people buying a new home are
>doing so within the same community (or a group of them within several miles).
I think that in general, the law should be hostile to restrictive
covenants and other restraints on the free alienation of land (which
it actually is and correctly so). Currently, we tolerate these kinds
of restraints, most of which have only sprung up in the last couple
hundred years, because they make use of the land more economically
efficient. However, allowing them to linger on past their useful
lifetime, especially as the communities age and aren't necessarily
efficient any more, is increasingly going to become a problem.
In most cases, these entities are still useful. Let them linger on a
couple hundred years, and they'll be less so. Additionally, they were
often set up with ill-planned rules and bylaws. For example, rules
requiring periodic elections but simultaneously requiring a quorum of
two thirds of votes. When votes are apportioned one per unit and much
of the community is held by owners who own multiple units and rent out
to residents who, themselves, have no vote, it can be effectively
impossible for owner-residents to get a quorum together. The
lessor-owners never bother to show up unless there's something wrong
with a unit.
This is when you end up with the kind of situation where you have a
holdover board which refuses to leave office despite having no legal
authority, and I'd bet this (or something like it) is the kind of
situation going on in The Eagles. It leads to nonaccountability and
effectively encourages breach of fiduciary duty by boards which act in
their own personal interests, confident that there will never again be
an election to get rid of them.
Then there are a couple additional wrinkles. First, most of the
lawyers who know anything about the arcane law which governs HOAs are
working for the HOAs themselves. Second, the HOAs have no reason to
care if they get sued for their ultra vires and unauthorized actions
in any case. If they lose, they just slap another assessment on the
owners. What do they care? In any case, where are the owners going
to find a lawyer who specializes in this field anyway?
Add in that if you lose, even if you don't get slapped with the HOA's
fees via an in terrorem clause, you'll end up paying them through an
assessment, and so will your neighbors, who are likely not going to be
thrilled with you.
(Incidentally, back to the OP, while I think the fee-shifting at issue
in the pick-up truck case was probably due to the objectively
unreasonable behavior of the HOA, while I haven't read the order
shifting fees, it's possible the court construed an in terrorem clause
liberally to read against the drafting party as well. Sometimes this
happens when it would be unfair to do otherwise.)
Mike Jacobs
> On Sun, 21 Dec 2008 09:35:18 -0800 (PST) Mike Jacobs <mjacobs...@gmail.com> wrote:
<snippety>
> OTOH, something approaching that kind of thing actually happens with
> housing developments. The standard template of covenants are exchanged.
Nothing wrong with sharing, or coming up with standard forms, for use
by willing participants, so long as the developer of each new housing
development is free to make its own decision of whether it wants its
subdivision to become a covenanted community or not. What would be
untoward, perhaps even illegal, would be pressure by the existing
developers to make a new developer conform.
> While it may not literally be "if you stick everyone with this requirement
> then I will, too" kind of thing, it certainly is along the lines of "here
> is what I'm doing in my development, and you might want to do the same
> kind of thing ... he's a copy of mine". Now days things have gone even
> beyond that to where covenant packages can be bought by the developers or
> their lawyers.
And if Joe Farmer wants to turn his former hoglot into a plat of mini-
mansions with no restrictions on their decor or their acceptable uses
except those imposed by government-level zoning rules, he still has
every right to do so and not to buy the pre-written covenant document
package.
The reason most commercial developers these days do put up covenanted
communities is to protect their _own_ property values in the lots on
their subdivision that haven't been built upon or sold yet.
Subdivision, these days, usually means taking a _big_ area of open
land, several hundred acres or more, and turning it into a single
housing development with a unified "theme" and just one or 2
authorized builders (often affiliated with the developer) to build on
those lots. This is BIG business, not just in terms of its
collective value to the economy but in terms of the buy-in cost to be
a player in the development game because of the size of the initial
investment.
It's not like the old days where development occurred slowly, and
piecemeal, as a large farm owner gradually broke off and sold (or
gifted) small bits of his land, at separate times, to separate family
members (or strangers) over decades or centuries, with no overall
rational plan or unifying architectural theme. Back when communities
grew organically like that, over centuries, lack of planning was
quaint and picturesque, as in some picture-postcard New England
village. But once suburban migration gained momentum after WW2 in the
USA, unplanned and unregulated development of large blocks into far-
flung housing and shopping areas occurred. The result was often a
crazy quilt, not often pretty, with miles of big-box stores in strip
malls lining straight multi-lane business streets to the horizon (yes,
I used to live in Los Angeles) and often without making provision for
needed infrastructure such as parks, schools, churches, etc. within
the subdivision, the new homebuilder simply counting on throwing his
new buyers upon the existing resources of the community for those
things, often overstressing them to the breaking point. Politicians
gradually came to recognize that planning was needed, not just as a
pie-in-the-sky utopian dream of a perfect town, but to deal with real
problems of real people who had already moved, or wanted to move into
their community and didn't have enough schools, or fire stations, or
sewers. Sort of like playing a giant game of SimCity, for real.
I suppose it comes down to whether or not you think urban planning and
land use planning is a good thing, or whether you think all land use
decisions should be left entirely up to each lot owner, or somewhere
in between. I think most of us come down somewhere in between, so
then the only question is, how much involvement should government
(through the zoning laws, or the courts) have in whatever private
restrictions a group of landowners are able to work out among
themselves to preserve a certain ambiance or way of life? I'm
generally in favor of minimizing such involvement except where it
spills over to restrict the freedoms of those who did not knowingly
and voluntarily buy into an area subject to such restrictions, or when
the restrictions themselves are not merely uselessly silly but
positively violative of public policy (environmentally harmful,
invidiously discriminatory, etc.).
Once all the lots have been sold, and the power of the HOA to pass
bylaws and enforce covenants (formerly held exclusively by the
developer) has been transferred to the group of new owners, it's up to
those new owners, collectively and acting through their HOA
representatives, to decide if a particular restriction is reasonable
or not. All the government can do as to such private arrangements is
make sure they are carried out fairly and with internal due process
according to their own set procedural rules.
<snipalot>
> | Other than the prospect of a $100k attorney-fee-
> | shifting bill, and the "man bites dog" aspect of the fact that the
> | homeowner won (usually, the HOA does), there is nothing at all about
> | the opinion that even seems majorly newsworthy IMO -- such covenant
> | enforcement suits are common as dirt.
>
> Right. The case referrred to is not one of "no choices". That might
> or might not have been a real situation, but it isn't what the court
> was asked to decide about.
OK, we're on the same page here.
<snip discussion of "enforced fairness" i.e. being "required to offer
a choice">
> If you want to serve a niche, that is fine. If every developer wants
> to serve the same niche, and the community does not consist of mostly
> that niche (well, it wouldn't be much of a niche at that point), it
> can be a harm to the community.
I'm not sure I follow you here. What is the "community" of which you
speak? Is it the entire population of a major urban area? In such
a wide area, the potential homebuyer (upscale, downscale or in
between) has plenty of choices, from a converted industrial loft in
the inner city to a large and unique exurban estate, from a no-yard-to-
maintain condo to a classic SFD home with a lawn and a white picket
fence. But if you're talking about, say, the "community" of owners of
a single, couple-hundred-acre subdivision with an HOA, I can't see how
enforcing covenants in that subdivision is anything an owner who
knowingly bought into those covenants would have any right to complain
about.
Let me postulate that you are talking about a prospective homebuyer
who wants to live in a similar kind of suburban milieu but who does
not want any covenant restrictions. ISTM then his choice is either
(a) find a new development being built that meets his standards but
has no such restrictions, (b) buy an existing home in a non-covenanted
area (which will probably be older, funkier, maybe in a more run-down
neighborhood -- after all, there are no covenants locally to force the
neighbors to keep up their properties to the same standard he
apparently expects the neighbors to adhere to out of general
principles but doesn't want to apply to himself), or (c) he can buy an
undeveloped lot, get his own zoning and construction permits, and
build his own custom home -- or for that matter, his own unrestricted
subdivision if he prefers and wants to risk the investment it would
take (often, the "silent" investors in such a plan have a big say in
just how risky or out-of-the-ordinary the promoter can get, with THEIR
money). I just fail to see how this prospective homeowner can
reasonably expect a commercial developer of a large-scale development
to offer him the kind of neat, tract-house uniformity he is looking
for (if that IS what he is looking for) without having the covenants
that come with such an architecturally unified development. If such
local uniformity is NOT what he is looking for, he is looking in the
wrong place if he is focusing his search on large-scale suburban new-
home subdivisions.
> I'm guessing you and I have different political opinions of how much
> the government can and/or should get involved when a systematic pattern
> of business decisions becomes harmful, even if the decisions considered
> individually would not otherwise do so.
No, I think we're pretty close as to when we would want government to
intervene, or not. Certainly, I believe in trust-busting, in the
generic sense of preventing oligarchic cabals of rich businessmen from
being the only ones allowed to shape public policy from behind the
scenes in smoke-filled rooms, as well as in the specific sense of
enforcing the antitrust and consumer-protection laws against companies
that engage in monopolistic, unfair, anticompetitive and anti-consumer
business practices.
But the issue here is simply whether the type of problem we've been
discussing (say, a ban on pickup trucks, if rationally passed and
fairly interpreted and uniformly enforced by a HOA that is fairly
representative of all the homeowners within a community) is something
that requires government intervention. I say, it generally does not,
and in fact the government generally will keep its hands off and will
reject any such suit or defense by a disgruntled homeowner against the
enforcement efforts of the HOA, unless the covenants are being
enforced unfairly (ignoring internal due process, or applying a
twisted and unfair interpretation of their meaning), while the courts
generally _will_ allow a suit to continue if its allegations go to the
basic fairness of the process provided by the HOA and the fundamental
irrationality of their interpretation of their rules (or the
illegitimate status of the HOA itself due to vote fraud, failure to
hold elections, etc.).
And, that analysis applies not only to HOAs and subdivisions, but to
government intervention in any voluntary community, whether that be a
corporation and its management, a convent and its nuns, a fraternal
organization and its members, or a church and its congregants. The
judge will not (that is, should not, although sometimes I suppose they
do) second-guess the decisions made by the powers-that-be of the
organization or substitute his own judgment for theirs even if he
personally thinks they decided an issue wrongly; rather, the courts'
only role is to make sure the members all play fair in reaching that
decision.
> |> This really should be solved in the political arena.
<snipmore>
> | We don't have
> | to throw out the baby (the right to freely associate with other like-
> | minded individuals in an environment of our own choosing) to drain the
> | bathwater of invidious discrimination, or monopolistic, anti-
> | competitive business practices, or environmentally harmful, nuisance
> | land uses, which are the only kinds of circumstances IMO where
> | government should properly intervene in these kind of private
> | arrangements.
>
> I respect your disagreement. And I actually dislike government imposing
> to make everything uniform, although I see benefits in that in many places.
> But if what the businesses are doing _systematically_ makes things bad for
> the community, then I believe government should step in to change that in
> some way.
I still can't see what you're talking about. Give a concrete example.
> I believe it should make that change in a minimal way. Instead
> of outlawing something entirely, effort should be made to find a way to
> have choices.
There usually is an effort to accomodate various user communities when
public bodies make decisions about rules to govern land use (to limit
the potentially broad-ranging issue of when government intervention is
appropriate, to the topic at hand, i.e. land use planning). Zoning
rules have to recognize and accomodate a range of interacting and
interdependent uses to make a whole, economically viable community,
even if some uses are forbidden in some areas and vice versa.
Decisions about access to public land likewise need to take into
account the needs of various users (e.g. if an authority is
considering banning off-road motoring from most areas of a public
park, I would expect off-road enthusiasts to argue that an area should
be set aside where such off-roading is permitted, and I agree that
such diverse needs should be accommodated where that can be done
without serious harm to the overall scheme). Is that what you are
talking about?
> If there is a covenant restriction against pickup trucks in
> the entire community,
I still don't know what you mean by "the entire community." In the
example at hand, the entire, several-hundred-acre subdivision known as
"The Eagles" banned "trucks or vehicles used ... for commercial
purposes" from overnight street parking, requiring them to be garaged,
while there were undoubtedly other areas of the town of Odessa FL
(even in such a small metropolis as that) where a prospective
homeowner with a crew-cab 6-wheeler such as our protagonist, could
readily find a home to buy, in front of which he could park his
personal vehicle. Presumably, if Mr. Vizzi had been told upfront by
someone in charge (or by being given a copy of the applicable rules)
that "your big truck is not welcome to be parked on your driveway
overnight here," before he moved in, he presumably would have said
"fine, I'll shop elsewhere" and the case would not have arisen. His
complaint was a fairness one, both because the HOA neglected to give
him a copy of the master covenant for The Eagles (he only received a
copy of the local rules for his subdevelopment, not the master set of
rules) and also because the HOA's interpretation of the master written
rule was unreasonable and conflicted with the local rule.
> it may be going to far for the government to ban all
> such covenants.
Agreed.
> But, it is also wrong for the government to pick and choose
> which developments it would ban them and not ban them.
Also agreed. That is why the courts can't (rather, shouldn't, even
though sometimes they mistakenly do) get involved in saying "this one
is good, that one is bad," substituting their own judgment for that of
the HOAs that pass the internal rules. All the courts can do is make
sure that ALL the HOAs enforce tbeir internal rules fairly.
> Instead, what they
> should be doing is finding some middle ground.
They have, IMO alreadly found the middle ground. It is the same
middle ground that the courts apply when considering internal
corporate affairs when a shareholder sues, or internal church affairs
when a congregant sues, or resolving a dispute over which faction of
the Fraternal Order of Muskrats owns the clubhouse at issue. That
is, the courts keep hands-off except to make sure that the internal
process the group used in reaching its decision on an issue is fair.
> If 40% of the people want pickup trucks, and 60% of the people want to ban
> pickup trucks, something needs to be worked out.
Well, those who want pickups can in the first instance just not move
in. If a proposal is made to change the rule after they moved in,
they must be given a fair opportunity to be heard, and fair
consideration of their competing interests by the HOA board in
reaching a decision on the issue, which should accomodate them as much
as possible by compromise or by making an exception, to as nearly as
possible give every competing interest a fair shake. Or, they can
elect their own representatives to the HOA board, even if they don't
have a majorityh that can take it over and forcibly change a rule they
don't like. This will not allow them to ramrod through the changes
they want, but will make them a faction whose interests must be fairly
and duly considered.
Side note -- I'm struck by how much this type of process has in common
with the international-law-and-comity discussion we are currently
having on another thread hear on MLM, or the way any legislature
actually works -- there is a huge amount of "I'll scratch your back if
you will scratch mine" going on, trading of votes for favors, and
catering to diverse interest groups for support. That is how
democracies really work, and there is nothing wrong with that, so long
as it is done fairly and aboveboard and not corruptly (i.e. voting for
things that you can't stomach ethically in order to obtain a quid pro
quo, as opposed to just agreeing to vote for a colleague's bill that
you don't care about one way or the other if he'll support yours; or
selling specific votes for bribe money, rather than just lending an
ear to the needs of those who support your campaign).
> The people that want to
> ban them could be the majority if a vote were taken. Our government(s)
> were founded under ideas where the majority should not have THAT much power
> over others, but that is also a hard concept for government to work with,
> too, since otherwise it is supposed to be "majority rules".
Actually, no; the essense of our democracy is NOT "majority rules."
Any ragtag mob can claim to be carrying out "majority rule" when they
lynch somebody, or drive a business competitor or an unfavored
preacher out of town. Which means your ideas are on the right track.
THE ESSENCE of democratic government, and esp. the constitutional
protections of due process, is to allow the MINORITY (here, meaning
the group with fewer votes on any issue, not necessarily an ethnic or
racial group) to be protected against the will of the majority being
unfairly applied to them. We are talking about exactly the same
thing, if your idea is to have the government come into a private deal
and intervene if but only if one side complains that the other side is
not playing fair by their own internal rules or is otherwise violating
some law.
> Ideally, it
> should be "majority rules up to not taking away rights of others".
By George, I think he's got it.
<snipem>
> | the American
> | way of allowing a wide variety of faith communities and other social
> | groups to follow their own drummers. Yes, it is all about choice.
> | That's what makes this a great country.
>
> FWIW, I consider myself to be a "middle of the road extremist".
Not sure what that means, but I guess I do too. "Realpolitik
pragmatist and rainbow-mosaic (not assimilationist-melting-pot)
diversity-inclusivist who disdains one-track ideologues of any
persuasion and who wants politicians to make real efforts aimed at
resolving real problems rather than sticking their hand in the till,
throwing up get-me-reelected window dressing and issuing limbic-system-
stimulating, knee-jerk-emotional, energize-the-base sound bites" would
be another way I would describe my political orientation.
> I do believe the federal (national) government should get involved when
> it is a matter of national interest. And I believe it hasn't done that
> enough in the past.
Certainly the W administration has been a recumbent rather than
rampant lion when it comes to things like financial institution
oversight, environmental protection, fighting unfair monopolies with
antitrust, and encouraging a sense of common sacrifice to meet common
goals (such as fighting terror) while preserving civili liberties, all
while their affiliated companies and lobbyists (at least pre-Abramoff)
are profiteering handsomely from the war effort and the gutting of
antipollution measures and relaxed labor protection and stuff like
that. If that's what you're talking about.
> Taking a peek at the current national crisis, I do
> believe it is in the national interest to keep "strategic" manufacturing
> capability in this country, and that includes car (and pickup truck)
> manufacturers. But I also see how well paid emplyees are a boost to the
> economy.
Can't disagree with your premises. IMO what we need is for the
bigwig execs to take bigger pay cuts than the auto workers frex.
Remember back when Lee Iacocca limited his salary to $1 a year until
Chrysler got back on its feet with goverment bailout loans in the
early 1980s? Do you see any of the current crop of moneygrubbing
CEOs offering anything similar, even though executive compensation has
grown exponentially faster than labor costs have, even if we're
talking about cushy union jobs and pensions? I strongly smell
scapegoating of labor by the monied interested parties as an excuse to
let them take our public money and just get back to more "business as
usual" where that means more outsourcing to cheap labor in Canada and
Mexico under NAFTA, more union-busting, more relief from needed
environmental and car design safety rules and OSHA protection of
workers' safety, more profits to the bosses for busting everybody
else's chops (or for downsizing their company) instead of for
building better cars, and less effort to address the real problems of
infrastructure collapse (bridges falling down et al.) and REAL
conservation incentives that would come from a much larger Federal gas
tax for rebuilding our highways and encouraging more people to want
smaller cars.
<snjip discussion of the planned community of Columbia MD>
> In which communities can I place my ham radio antenna up high enough that
> it won't mess up poorly engineered TV sets?
I don't know, frankly, whether a ham tower is permitted here in New
Town zoned areas or not. On second thought, actually I do have some
friends who are licensed hams and live in the New Town zone, so I
guess a tall entenna is permitted so long as it is not visually
obtrusive. OTOH satellite dishes for TV must either be the small
kind or completely hidden from public view (in a high-fenced, enclosed
backyard, or internal to the attic) for the same reason. IMO these
rules are not unreasonable as they do not completely ban antennas of
any kind, simply making sure that their appearance is not intrusive on
the neighbors' domestic tranquility.
<Skip discussion of voluntary communities such as monasteries,
communes, and such>
> | Ditto Columbia. We don't _force_ you to move out if
> | you're not a tree-hugging, multi-ethnic, Kumbaya-singing ex-60's we-
> | will-save-the-world type, but we do require you to follow our covenant
> | rules if you live in the New Town zone.
>
> If they create the community where none existed before, I see little or no
> problem with it.
OK. That's why there are outparcels scattered within the New Town
zone here. The existing, pre-Columbian landowners who did not sell
out to the developer in order to create the new town, are still
subject to only the same generally applicable County zoning laws as
before, and lots or homes in these outparcels remain as a viable
choice for anyone who wants to move into this general area of the
county but doesn't like the New Town planned-community idea (or who
like it fine as long as it's next door, but don't want to be
personally liable for the covenant restrictions, or the annual
association fees, that come with that idea). Some of my best friends
live in or moved to outparcels, and we're still friends. They can
take advantage of the resources the New Town offers, such as our
sports facilities, our wooded walking paths, and our pleasant-to-look-
at and varied street plan and housing layout, and they don't have to
pay extra for living next door to it. Fortunately, some of us live
_in_ it, not next door to it, and do pay for it.
> Where covenants that are the same in all developments in
> a community become an issue is how it affects the choice of people that have
> already established roots in the community are affected. They choice is then
> to be subjected to someone's change in rules, or leave the community. That
> is what I think is bad. If the covenants existed before they came to that
> community, that's not much of an issue. Most people buying a new home are
> doing so within the same community (or a group of them within several miles).
OK, again we're on the same page. Constitutional due process would
not allow any new private subdevelopment, with governmental approval,
to impose its rules on a separate pre-existing property that just
happens to be nearby. The only way to change the rules applicable to
a pre-existing outparcel is through the zoning laws, which have many
layers of required public comment and generally applicable standards
to be met before a change in the rules can occur, and many other
interests to consider (since the zoning board are officials elected by
the county at large) to make sure no one's feet get stepped on
unfairly. Then, if a rule change would unfairly impact a particular
owner, or prospective owner, the nonconforming use can either be
"grandfathered" into the new rule allowing it to continue, or a
special exception can be made for a new, nonconforming use. Or,
government can use eminent domain to take a property if that is
required in the public interest, but only if the former owner is
fairly compensated. None of this is new, nor is any of this limited
to areas of heavy new development where most developers of new
subdivisions typically impose covenants and HOAs.
Just so we're clear, by "development" I mean the process by which a
big hunk of bare, vacant land is broken up ("subdivided") into
numerous smaller lots, generally with at least roads and utilities and
often other quasi-public amenities, and in which each of those lots is
then "improved" (by having a house built on it) and sold by the
developer to people wanting to move into a brand-new housing bloc.
All of these covenants and HOAs and stuff have to be set up before the
first house is built or the first owner moves in, so that each new
owner takes the land _subject_to_ those existing covenants that are
already part of his deed. A pre-existing house that happens to be in
the middle of a new "development" is NOT legally part of that
"development;" it is what I have been calling an outparcel.
Otherwise, we're not talking about the same thing, and you need to
define your terms.
> I don't have problems with rules that say commercial vehicles cannot be
> parked in front of homes outside. But I do have a problem with a rule that
> says a clean, well maintained (elsewhere), pickup truck, cannot be kept in
> front of a house when neighbors are allowed to do the same with a car. A
> rule against any vehicle being parked in front would at least be fair. But,
> if every development had such a rule, that could be a systematic problem.
> Hopefully, it wouldn't happen.
Now you're getting off onto the side issue of whether you personally
like the rule or not. I too think it's a silly rule, if that _is_
the rule, but in Vizzi's case, the judge said that was _not_ the rule
(by interpreting the master covenant in a reasonable manner, against
the party who drafted it, and consistently with the related rule for
Vizzi's local subdevelopment that did allow personal-use trucks to be
openly parked there). Yet, even if I think such a rule is silly, I
would not want the courts to have the power to void it for that
reason, so long as it was enacted by fair internal procedure complying
with due process by the HOA in question, and interpreted and enforced
fairly.
In this day and age, when over 50% of the vehicles in actual personal/
family use are technically trucks, including SUVs, minivans, and
pickups as well as "crossovers" (can't we just call them "station
wagons" again?) you are not going to find many HOAs anywhere in the
country that would attempt to ban clean, well-kept, reasonably-sized
private transportation units regardless of body style. Which, again,
is why the reported case of Mr. Vizzi and his master HOA's drastic
interpretation of its own rules became so newsworthy: it was uniique,
it was outrageous, it sold newspapers, it got people to watch the TV
news and thus sold more soda pop and E.D. medications. But it was NOT
at all representative of what the vast majority of HOAs are like, or
of most homeowners' experiences with them.
> I've had to deal with virtually every development having rules against ham
> radio antennas. My answer to that is that the city should declare that the
> existance of such a rule adds $1,000,000 to the value of each acre of land
> and to tax it accordingly :)
Not a bad idea to propose, if it would accomplish your purpose -- do
you think it has any chance of passage?
Mike Jacobs
> I think that in general, the law should be hostile to restrictive
> covenants and other restraints on the free alienation of land (which
> it actually is and correctly so). Currently, we tolerate these kinds
> of restraints, most of which have only sprung up in the last couple
> hundred years, because they make use of the land more economically
> efficient. However, allowing them to linger on past their useful
> lifetime, especially as the communities age and aren't necessarily
> efficient any more, is increasingly going to become a problem.
You raise an excellent point, taking the long view. Perhaps many
such covenanted communities will evolve over time to the point where
the entire covenant scheme makes no sense as applied to that parcel
anymore, at which point I would guess that one or more of the
residents would petition a court to declare that set of restrictions
on the use of the property void, just as can also be done with other
kinds of restrictions on use of property that have lost their purpose
(dedication to a charitable purpose that no longer exists, frex) and
thus it may turn out to be equitable they should be judicially
modified in a particular case in light of current circumstances.
I find it hard to imagine in my mind the lovely planned city of
Columbia falling into such disrepair and neglect that it resembles
current West Baltimore (which resembles a war zone) but if that ever
happens, I suppose a new urban renewal movement will come along and
get the government to approve a new plan to bulldoze the whole thing
and rebuild something more suitable, as was also famously done with
Baltimore's Harbor Place / Inner Harbor and revitalization of the
surrounding areas. Maybe that would make a good post-apocalyptic
science fiction movie plot.
Happy holidays to all