Dear Rock Creek Hills property owners:
At the May 29, 2014 Rock Creek Hill Citizens’ Association (RCHCA) meeting, the membership charged the RCHCA Board of Directors with developing a position on whether rental accessory apartments would violate various covenants attached to most of the lots located within the Rock Creek Hills community. The Board met thereafter, and acting as the Board of Rock Creek Hills Covenants, Inc., discussed the differing language of several of the covenants in detail. Two members of the Board then met with counsel per the membershipās instructions. Based on its review of the covenants, internal discussions, and consultation with counsel, the Board has concluded that the various covenants governing lots in the Rock Creek Hills community preclude all rental accessory apartments, whether such apartments would be considered Class III accessory apartments, or might be, or have been, approved by the County via the “special exception” process. Therefore, as of the effective date of this policy, all rental accessory apartments will be deemed to violate the various Rock Creek Hills covenants, and the County permitting authorities will be so advised. Moreover, this conclusion will be enforced by right of private action in the courts if necessary.
As the membership is aware from numerous articles in the printed and electronic RCHCA newsletters over the last several years, the Board has a long-standing policy of enforcing covenant issues only upon complaint, the exception being the requirement to obtain advance Board approval of most external improvements to lots located in Rock Creek Hills. In the last two months, several anonymous complaints have been filed with the Montgomery County Department of Permitting Services alleging operation of unauthorized rental accessory apartments. (Because property owners against whom complaints have been lodged have only until late July to respond to such complaints, potentially including submitting an application to the County for approval of a Class III Accessory Apartment, the RCHCA Board had to move quickly, and were unable to bring this matter back to the membership for consideration.) This is the first time in some 25 years that the Board has had notice, by complaint to it or through complaints filed with the County, of what appears to be operation of unauthorized rental accessory apartments in Rock Creek Hills. The Board is concerned that requiring such historical but unauthorized rental apartments to immediately cease operation may cause hardship to the lot owners in question. Therefore the Board has determined to apply a forbearance policy to existing rental accessory apartments, regardless of whether they are unauthorized or are operating under special exception authority. This is separate from the Boardās long-standing complaint policy, which it will continue for rental accessory apartments, of taking enforcement action only on complaint to the Board or notice of application or complaint to the County. The forbearance policy is described in the following paragraph, and will be available only to existing rental accessory apartments that are now subject to complaint, or which are disclosed to the Board within three months after this policy becomes effective.
The Board will, upon agreement with the lot owner, defer from enforcing the covenants against existing rental accessory apartments of all types for five years from the date of the complaint for all complaints that were filed with the Board or with the appropriate Montgomery County department before the effective date of this policy. The five-year deferral also applies to complaints filed within three months of the effective date of this policy, and to rental accessory apartments whose existence is disclosed to the Board pursuant to the three-month window described in the prior paragraph. In order for this policy to apply to a specific accessory apartment, the lot owner must enter into an agreement with the Board acknowledging and agreeing that: (1) the lot owner recognizes that the covenant governing the lot precludes accessory apartments; (2) the enforcement of the covenant is deferred, but not waived, for five years from the relevant date as stated above; and (3) the lot owner will cease operating the accessory apartment at the end of the deferral period. Once the forbearance agreement is executed, the lot owner may apply to Montgomery County for an accessory apartment permit that would be limited to the time frame stated in the agreement. When the agreement expires, the lot owner may apply to the Board for an extension of the waiver, which will be granted only upon a showing of severe economic hardship. The right to apply for the extension would be included in the agreement, and could be incorporated in any accessory apartment approvals obtained from the County. The County would be notified that the forbearance period had been extended. However, the Boardās intention in applying the extension policy is that such extensions will be granted only in rare instances.
There are two additional points that should be emphasized. All the Rock Creek Hills covenants permit family members and servants to reside in what would otherwise be a single-family house. Therefore, the Board will not preclude non-rental apartments with a separate living area and kitchen that are for nuclear family members, such as parents or children of the owners, or for health care providers and domestics. However, converting such a non-rental apartment or unit to a rental accessory apartment would violate the Rock Creek Hills covenants, and would be subject to an enforcement action.
The Board will post this policy notice on the Rock Creek Hills Citizens Association website at rchca.org, by email via [email protected], and by first class mail to all known current lot owners in Rock Creek Hills. This policy is effective July 18, 2014.
Sincerely yours,
Jim Pekar
President, Rock Creek Hills Citizensā Association