1. SoCal 2007 Wildfire
Roadmap to Recovery:
Interfacing with an HOA after a total loss;
Meeting 17: July 17, 2008
Rancho Bernardo Community Presbyterian Church
www.unitedpolicyholders.org
Karen Reimus
reimus1@aol.com
2. Mark your calendar for upcoming
Roadmap to Recovery meetings…
Thursday, July 31: Integrating fire-resistant
technology/techniques into your rebuild
August - Insurance interest group meetings only
Thursday, August 14
Thursday, August 28
Thursday, September 11: Pre-1st Year Fire
Anniversary Legal Issues
3. Additional Support Resources from United
Policyholders to Help You Navigate the
Catastrophic Property Loss Recovery Process:
Disaster Recovery Mentor Program
Previous catastrophic loss survivors are available to provide emotional
support and “real-life” insight about recovering from a catastrophic property
loss. For more information, e-mail Karen Reimus at
karen@unitedpolicyholders.org;
“Survivor to Survivor” Listserve
A restricted listserve for ‘07 Firestorm Survivors only. It provides a
convenient means of sharing valuable information with others who are
similarly situated. For more information, e-mail Karen Reimus at
karen@unitedpolicyholders.org;
“Ask An Expert” On-line Forum
A restricted on-line forum where 2007 Firestorm Survivors can easily obtain
answers to disaster recovery-related questions from experts in the field.
Forum participants can direct questions to: 1) an attorney, 2) a claims
handling professional, or 3) a previous catastrophic loss survivor. For more
information, e-mail Emily Cabril at emily@unitedpolicyholders.org.
4. Videos of Roadmap to Recovery
Meetings Now Available…
Previous Rancho Bernardo Roadmap to Recovery
meetings may now be viewed as videos at the
United Policyholders website
To view previous meetings, go to
www.unitedpolicyholders.org. On the homepage, at the
top left corner. It says, "'Roadmap to Recovery'
Watch and listen to live videos". Click on that verbage
and you will be directed to a page that lists the previous
Roadmap to Recovery meetings
From there, simply click on the meeting date/topic that
you want to view. Download time for the videos varies
depending on computer and internet connection
6. Jan Rasmussen, RB United will distribute
Going home one step at a time
Celebrating along the Road Home:
Ideas and Encouragement for 2007 Fire Survivors
from Cedar Fire Survivors,
United Policyholders, and RBCPC
7. The Fine Print…
The information provided in this program is intended
for general educational purposes only. It should not
be construed as legal advice.
The speakers at today’s program are volunteering their
time as educators.
Neither United Policyholders nor the Rancho Bernardo
Community Presbyterian Church endorse or warrant the
quality or services of any volunteer speakers.
8. Roadmap to Recovery Series:
Successfully Navigating Your Homeowners
Association’s Architectural Review Process
9. Speaker:
Luis E. Ventura, Esq.
LAW OFFICE OF LUIS E. VENTURA
4190 Bonita Road, Suite 206
Bonita, CA 91902
Phone: (619) 479-7333
Fax: (619) 479-7322
Email: Luis@Luisventuralaw.com
10. Speaker Profile:
Luis E. Ventura was admitted to practice law in California in 1995 and
concentrates his practice in homeowner association law throughout San Diego County
and beyond. Luis handles issues of homeowner association governance, architectural
review, litigation, monthly assessment collection, transactional matters, etc. He also
handles general civil litigation matters including malicious prosecution and defamation
related cases, among others. Luis is past chair of the San Diego County Bar
Association’s Construction Law section and has served on the San Diego County Bar
Association’s Legal Ethics Committee since 2002. He also reviews law firm promotional
and advertising materials (brochures, web pages, etc.) for ethical concerns.
11. I. The Bad News:
a) Almost all associations have a Declaration of Conditions, Covenants and
Restrictions (CC&Rs) that provide for architectural control/review, i.e., limiting
your right to have your castle look the way you want.
b) A small group of people—the Architectural Review Committee (ARC)—who do not
own your home/lot can use their subjective views, in addition to objective
requirements, in determining whether to approval/disapprove your plans. (See,
e.g., Clark v. Rancho Santa Fe Assn. (1989) 216 Cal.App.3d 606.);
c) Courts will not overturn an ARC’s denial of architectural requests unless there has
been a patent abuse of discretion, i.e., only if the ARC has acted arbitrarily,
capriciously, or in bad faith. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81
Cal.App.4th 965, p.979.) Courts are to generally defer to the ARC’s decisions and
are not to substitute their own judgment in place of the ARC’s. (Ibid.)
d) Most CC&Rs, even in single family detached neighborhoods, do not expressly deal
with complete losses and the rebuilding of an entire home.
e) Complete rebuild provides greater likelihood of disagreements.
12. II. The Good News:
a) Despite what Michael Turko would you have you believe, the vast majority of
associations are not out to stick it to the owners.
b) With knowledge of the process, a “let’s work together” attitude, and an understanding of
the ARC’s point of view, you should be able to navigate the review process successfully.
III. The Steps:
a) Educating yourself: read all architectural provisions in the CC&Rs and in any
architectural guidelines line by line.
b) Conceptual Plan: Some CC&Rs require a review of conceptual plans before the review of
detailed plans. Even is no conceptual review required, first submit such plans weeks
ahead of time and ask to meet with ARC to discuss any preliminary
issues/concerns/thoughts.
i) let ARC know you are nice people; have the better communicator
be the point of contact;
ii) that you want to follow the rules;
iii) that you understand they might have some things they are concerned about;
13. c) Plan Submission:
i) Detailed submission with all relevant information and correct
number of copies; use the association forms in architectural
guidelines;
ii) personally deliver plans; alternatively, call to confirm receipt and to ask whether
any questions/comments or additional information you can provide;
d) The Decision:
i) What does ARC typically consider?
CC&Rs will often set forth: color, finishes, size, location, conformity
with rest of neighborhood**, etc.
ii) Consideration of views permissible? Some CC&Rs expressly allow
for this. Law generally does not provide any protection for views;
iii) Was decision timely made? Most CC&Rs have automatic approval provisions if
ARC fails to deny within 30/45 days. Newer CC&Rs (last 8 years or so) have
automatic denial provisions;
iv) Decision must be given in writing including explanation why submission was
disapproved and description of procedure for reconsideration by Board (section
1378(a)(4)).
14. e) Appeal to the Board:
i) Right to appeal set forth in CC&Rs?
ii) Right to appeal in open meeting of Board now provided by statute (section
1378(a)(5)); no such right if original decision made by Board or by body
(e.g., ARC) with same membership as Board if decision was made in open
meeting.
f) Use of Internal/Informal Dispute Resolution Procedure (IDR)
(section 1363.810 et seq.)
i) all associations must have written IDR procedures; if none, default
statutory procedure applies (section 1363.840);
ii) at minimum, IDR must provide:
A) request to use IDR to be in writing;
B) if owner requests, association must accept; if association
requests, owner has option of declining;
C) prompt deadlines, including time to respond to request;
D) any resolution made in IDR binds association so long as not in
conflict with the law or the governing documents;
E) owner not to be charged a fee.
15. IV. Common Owner Complaints:
a) Large Deposit/Fee for Plan Review:
i) How to address?
A) Is this authorized by CC&Rs or architectural guidelines?
B) Is it a written rule?
1) all “operating rules” and changes thereto (Civil Code
section 1357.100(a) and (b)) must be in writing and must be
“reasonable,” in addition to other requirements (section
1357.110(a-e));
C) Was amount properly established by following procedure for
adoption of rules? Following applies to rule changes commenced
on or after January 1, 2004; not affect anything that predates
this:
1) applies to “[u]se of a separate interest [i.e., your
home/lot], including any aesthetic or architectural standards that
govern alteration of a separate interest” (section 1357.120(a)(2))
and to
“[a]ny procedures for reviewing and approving or disapproving a
proposed physical change to a member's separate interest or to
the common area.” (Section 1357.120(a)(6));
16. 2) did Board provide owners with at least 30 days
written notice of rule adoption/change along with
actual text of rule and explanation of its effect?
(Section 1357.130(a-e));
3) Reversal of rule by owners? Takes a petition
signed by 5% of homes to hold a vote of all
membership on whether to veto rule. If majority
of quorum votes to revoke rule, it is revoked and
Board may not readopt it for at least one year
thereafter. (Section 1357.140(a-h).)
D) Will the Board/ARC waive the fee or allow it to be paid over
time?
1) Does the Board/ARC have authority to do so?
2) If not, will it seek amendment of CC&Rs to give it
such authority or change rule/guideline re fee?
3) Unite affected owners and push for CC&R
amendment to prohibit the charging of such a fee?
E) Is your homeowners insurance carrier obligated to pay for
the fee in that it is necessary for rebuilding, just like a permit
fee?
17. b) Imposing Strict Building Guidelines:
i) Height limitations, minimum size, etc.
ii) How to address?
A) All of the same procedures regarding architectural
rules addressed above apply here as well;
B) Association must allow Fire Retardant Roof Coverings
for homes located in a “very high fire severity zone,” as
designated by the Director of Forestry and Fire
Protection or by a local agency. Cannot require the
installation/repair of roof that would violate Health and
Safety Code section 13132.7 which allows for use of roof
material that is “at least class B as defined in the Uniform
Building Code, as adopted and amended by the State
Building Standards Commission.” (Civil Code section
1353.7(a-b).)
C) Guidelines cannot prohibit or have effect of prohibiting
use of low water-using plants as a group. (Section
1353.8.)
18. V.…and
V.…and When All Else Fails…Litigation:
a) A bad resolution is often better than a good lawsuit.
b) Pre-litigation offer of alternative dispute resolution
(ADR): with minor exceptions, prior to filing suit for
enforcing CC&Rs, guidelines, etc., one must offer ADR;
normally mediation is offered, but arbitration can also be
used.
19.
20. Roadmap to Recovery: July 17th, 2008
Interfacing with an HOA after
a total loss
David R Shalinsky, PhD
drshalinsky@aol.com
21. Background in
Whispering Ridge Home Owners Association
Homeowner
1994 – present
Member, Board of Directors
1996 – 2005
Member and Chair, Architectural Committee
1999 – 2005
Cedar Fire Rebuild 2003 - 2005
22. Rebuilding after Fire Disaster
is an Unusual Time
Loss of control
Emotions are raw
Finances in upheaval
Insurance blues
Short fuses
You know the drill…..
23. HOA Governance
CC&Rs
Covenants, Conditions & Restrictions
Board of Directors
Rules & Regulations
Architectural
Other Committees
Committee Landscape, Pool, etc
Architectural Review
24. Understand Jurisdiction
Use of Land (buildable pad) City (PRD)
Approval of Building Permit City (PRD)
Esthetics, Look of home Arch Committee
Exterior landscaping and hardscaping included
Key concept = harmonious with neighborhood
31. Some Assumptions
You signed on…. I signed on
Your HOA is in uncharted waters
Welcome to the club
Volunteers are generally civic-minded
Common commitment to restoration
32. CC&Rs Architectural Control
The Architectural Committee shall have the right
and duty to promulgate reasonable standards on
which to examine any request made pursuant to
this Article, in order to ensure that the proposed
plans conform harmoniously to the exterior
design and existing materials of the
Buildings in the Project.
37. WRHOA Policy after Cedar Fire
Kept the same Arch Review process
Each HO was responsible for own application
Architectural application
Architectural review & decision
Right to appeal to Board
Goal to maintain similar nature of homes
hips and gables
roofing “wood-like appearance”
general colors (earthtones)
Understood & embraced rebuilding of new custom neighborhoods
Flexibility on: Stucco, Stone, Siding
38. WRHOA Policy after Cedar Fire
Waived architectural review fees
Sought and procurred pro bono architects
Expedited review & personal service
All members of Arch Committee lost home
Met weekly for 7 months, biweekly thereafter
Courier of plans to and fro
Personal interactions w/ Building Dept
Expedited approval after full review/comments
39. Examples of ‘Harmony’
Goal was to build homes with similar
esthetic features to original
Working with custom, merchant builder
and pro bono architects
59. Specific Examples around
Home Color
Mis-communication: Change in Roofing
color led to changed color of house
Lack of communication: Color of house
Good communication: Color of house
60. What could have gone better
There is no blueprint for rebuilding after disaster
CC&Rs do not address specific esthetic features
Architectural Committee approved a few unique
homes based on lack of experience and/or intent
of a few homeowners
A few homeowners didn’t play by the rules
City and HOA didn’t set up an up front policy on
the use of the buildable pad
Many homes have too little yard space
Landscaping issues
62. What went well
>97% (163/168) homes achieved desired
harmonious results SUBJECTIVE
Most homeowners rebuilt homes recognized as
beautiful or tasteful SUBJECTIVE
Most homes rebuilt by 2 yrs
Lovely custom neighborhood arose
Great sense of satisfaction among Architectural
Committee members & community
63. Inside Scoop:
Architectural Committees & Boards turn
over inconsistency over time
An example of almost any architectural feature
may exist in your HOA
Architectural features may or may not have been
approved
- May have been,May have been installed without approval,
May be a mistake
Regardless, does it pass the “harmony test?”
SUBJECTIVE
64. Summary
You’re a full member of the HOA exists to serve you
Work with your Arch Committee in good faith
“Harmonious construction” is subjective and not defined
by CC&Rs
Rules and Regulations evolve over time
You should not have to rebuild a home with dated
designs, materials or features
You should be able to add designs, materials, and features within
the framework of ‘harmony’
Your HOA must follow the CC&Rs and you therefore
need to know yours
65. Summary
Advocate on your behalf
Appeal Arch Committee decisions to the
Board of Directors
Avail yourself of pro bono legal advice
if necessary
HOA doesn’t want to be liable for wrong
doing
68. Mark your calendar for upcoming
Roadmap to Recovery meetings…
Thursday, July 31: Integrating fire-resistant
technology/techniques into your rebuild
August - Insurance interest group meetings
only
Thursday, August 14
Thursday, August 28
Thursday, September 11: Pre-1st Year Fire
Anniversary Legal Issues
69. Break Out Sessions
State Farm : Dormer West
Farmers : Skylight West
Allstate : Upper Courtside East
USAA: Small room off lobby
