Covenants Agenda for RCHCA General Meeting on Thursday, May 13, 7:30 pm at Grace Epsicopal Day School
Covenants Meeting Agenda
Other than required items such as the Treasurer's report and approval of the
prior meeting minutes, the May 13 General Meeting will be devoted almost
entirely to a few key issues related to the enforcement of covenants. For
general information purposes, Rock Creek Hills Covenants Inc. (RCHCI) is
responsible for enforcing those covenants which apply to properties within
Rock Creek Hills. The Board (officers) and Executive Committee (officers
plus standing committee chairs) of RCHCI are the same as for Rock Creek
Hills Citizens' Association (RCHCA). The following three covenants issues
will be addressed at the RCHCA General Meeting on May 13, time permitting:
. Covenants Enforcement Action Regarding Unauthorized Fence: What
to do about the unauthorized fence at 9604 Hillridge Drive?
. Pre-existing covenants violations: What should RCHCI policy be
when we learn about pre-existing covenants violations?
. Home based businesses: What types of home based businesses should
be allowed? (Time permitting, which may well not happen on May 13).
Legal counsel will be in attendance to help answer any questions.
I. Covenants Enforcement Action Regarding Unauthorized Fence:
As many of you know, RCHCI has been engaged in a protracted dispute with
David and Katherine Hatwell at 9604 Hillridge Drive regarding the
construction of an unauthorized fence. The location of their lot fronting
on two streets (Hillridge in front and E. Bexhill behind their house) means
that there are effectively two front yards for covenants enforcement
purposes. For over six months we have negotiated unsuccessfully to have the
fence removed or relocated to a place consistent with their neighbors' fence
at 9602 Hillridge, which also effectively has two front yards, but whose
fence is substantially more distant from E. Bexhill.
We also have engaged legal counsel to address the Hatwells' challenges to
our authority to enforce the covenants in question, as well as to help
negotiate a mutually agreed upon settlement. Counsel has confirmed that the
key to maintaining the enforceability of our covenants is to be consistent
in their application over time. Thus, while the written covenants prohibit
". line fences or walls of any kind.. except growing hedges, or such fences
of an ornamental character as may be approved by [the former authority,
which was legally transferred to RCHCI]", what matters is that RCHCI has
been consistent in the application and enforcement of this prohibition over
time. To this end, our Community Directory has for years provided guidance
that explicitly prohibits front yard fences by location, and chain link
fences by type. The location reasoning is that back yard fences adjoining a
neighbor's back yard are largely unobservable from the street and do not
have the same disruptive affect on the neighborhood view. In a similar
vein, retaining walls have been allowed for obvious functional purposes, and
do not have the obstructive appearance of a raised wall in front of one's
home.
Over the last few months, members who have addressed this case in their
e-mails have been overwhelmingly in favor of urging the RCHCI and RCHCA
leadership to enforce our covenants in bringing this matter to a successful
conclusion. It should be noted that we really have only three distinct
options at this juncture:
1) Agree to one of the several alternative proposals that have been put
forward recently by Mr. Hatwell. It remains unclear whether any of several
previously submitted written proposals are still acceptable to Mr. Hatwell.
Nonetheless, in the interest of leaving no stone unturned to avoid a
lawsuit, we wish to describe these proposals here, and get a sense of what
the community is willing to accept before RCHCI makes any final decision of
approval. RCHCI is requesting RCHCA members-in-good-standing who are in
attendance on May 13 to vote on the general acceptability of each of these
proposals. This will give guidance to RCHCI on whether to approve any
agreement with the Hatwells along the following lines, all summarized from
his written proposals:
a) Replace the existing fence with a new black aluminum fence about
three feet behind the current fence location, with shrubs of Hatwells'
selection planted in front of the fence;
b) Replace the existing fence with one of similar composition (pressure
treated wood) located about 13 feet further from E. Bexhill from the current
fence's location, with shrubs of Hatwells' selection planted in front of the
fence. Note that while this particular proposal was submitted over a month
ago in writing, the Hatwells indicated verbally in a subsequent meeting that
they might be willing to move the fence further away from E. Bexhill, but to
a location that is still about 8 feet closer to E. Bexhill than their
neighbors' fence.
c) Remove the existing fence and replace it in the same location with
Skip Laurel shrubs to form an evergreen hedge. When purchased, Skip Laurels
will be 36" and later grow to a height of roughly 9 feet at a rate of 6-8"
per year. In lieu of a fence, a green PVC coated metal mesh will be attached
to spikes located behind each shrub. It is claimed in the proposal that the
wire mesh will allow the bush leaves to run through the holes, effectively
removing the bulk of the visibility over time.
While there were varying opinions among RCHCI Executive Committee members
about the acceptability of these proposals, especially the last one, it was
generally agreed that any decision by RCHCI that results in something
potentially more visible from E. Bexhill than his neighbors' fence should be
informed by RCHCA membership voting at this meeting.
2) Submit, with the Hatwells, to binding arbitration. The cost for
this option should range in the $3,000 to $7,000 range. It is unclear at
this time whether the Hatwells would concur in this option, and mutual
concurrence is required.
3) Filing a lawsuit, and pursing it to a win or lose conclusion. Cost
will be higher than arbitration but the potential magnitude is unknown. It
is very unlikely to be less than $10,000.
Since RCHCI (i.e., Covenants Inc.) does not have any of its own funds,
funding would have to be authorized by RCHCA or else provided, in whole or
in part, by those residents most interested in pursuing legal action. The
course of action to be taken, and how such action would be funded, shall be
voted upon at this meeting by all RCHCA members in attendance and in good
standing. To be in good standing, your RCHCA dues must be paid in full by
the time of the meeting. For reference, through the end of March, we have
spent just under $6,000 on legal fees related to this dispute.
One last point: Our attorneys have advised that a failure to move ahead at
this time with some type of legal enforcement mechanism will cause
substantial damage to RCHCI's future enforcement capabilities in similar
circumstances.
II. Pre-existing covenants violations:
In the course of the above covenants dispute, it has come to our attention
that at least one other resident and perhaps more have fences that would
appear to be in violation of our prohibition on front yard fences and, when
considering back yards, may be in violation of our prohibition on chain link
fences. We need to decide what RCHCI policy should be when we learn about
pre-existing covenants violations. Do old front yard fences of any kind
and/or chain link back yard fences require RCHCI legal action, or after a
certain point, if they were never approved, should they be considered
"grandfathered in"? What should our policy be if the resident claims that
say, a front yard fence was there when he/she bought the home? And of
course, how much, if any, will RCHCA agree to fund legal redress of such
pre-existing covenants violations that we become aware of by whatever means?
Voluntary curing of a violation is always a possibility and should be sought
as a first resort.
Legal counsel informs us that, again, what is important is enforcement
consistency. For example, it could be argued that a consistent policy would
be to not take action on a fence or other violations that is of a certain
vintage if RCHCI only learns about such violation many years after the fact,
as long as it was never approved of, and if no one has formally complained
about it to RCHCI over that entire period. One consideration for RCHCA
consider for voting on is whether after some specified period of time in
which no formal complaints are made to RCHCI, that a particular covenants
violation has surpassed the time requirement for enforcement and is allowed
to stand.
The above questions need to be answered before we embark on enforcement of
pre-existing covenants violations.
III. Home based businesses:
Our covenants say that ".no part of said lots or land, nor any building
which may be erected thereon, shall be used for any trade, business,
manufacturing, mercantile purposes." Obviously, this is extremely broad,
and in fact is countered by County or State ordinances which permit socially
desirable businesses such as dentists and day care centers in residential
neighborhoods. But does this mean that anyone who runs a business out of
his/her home, such as an accountant, financial planner, or tutor, or manages
a business from their home but that is conducted primarily offsite, such as
one for home improvement, would automatically be in violation of this
covenant? Unless we wish to defer to the County, we need to establish
exactly what types of home based businesses should be allowed. A clear
policy must include what criteria should be considered to constitute a
nuisance to one's neighbors, and how we can maintain consistency with County
ordinances.
The county lists three basic categories of home based business:
. "home occupation no impact"
. "home occupation registered"
. "home occupation major"
A quick reading of the rules shows that the first two categories preclude
any home based business involving "A maximum of 5 visits per week.
[including] a visit to the home by one automobile transporting one or more
clients or customers". By this reckoning, someone tutoring "clients" would
fall outside of this maximum and therefore be a "home occupation major",
while a home remodeling business conceivably might be exempt, since the 5
visits per week do not transport clients but instead may only transport
workers who simply pick up the trucks and go offsite to do their work.
There are many different ways to be realistic about focusing on what impact
a business has on one's neighbors. For example, we might choose to accept a
policy that distinguishes between home based businesses in which multiple
customers come and go all day and potentially create a parking problem, vs.
businesses that have one-at-a time customers or, in other cases, have no
customers at all, but do have a limited number of non-oversized work-based
vehicles that come and go once a day to perform their work offsite.
Along these lines, purely as one suggestion to get people thinking, we might
consider defining what types of businesses might be prohibited based on
their neighborhood impact. Hypothetical types of businesses for prohibition
might include
. "Multiple customers at a time" home based businesses like a hair
salon;
. Businesses that create traffic problems by having multiple trips
per day through the neighborhood, or any trips made by oversize vehicles;
. Environmentally disruptive businesses, such as auto mechanic or
auto body work"
If there is insufficient time on May 13 to address the home based business
topic, at least the subject has been broached for RCHCA members to think
about and to address formally at the next General Meeting in October.