Lot 17 Covenant Violation Hearing

Lot 17 Covenant Violation Hearing

June 25, 2016

Meeting Objective:

Discuss the covenant violations with the Lot 17 property owners and the MPOA Board proposed course of action. Determine if there is a less disruptive way to resolve the violations than the proposed breach of contract lawsuit.

Background:

The MPOA president reviewed the covenant violations, the need to enforce them, a history of the Board’s actions, and the proposed sanctions:

Covenant Violations

1)Paragraph 4.1 of the MPOA Declaration states: “…any violation of any law, order, rule or regulation, or requirement of any governmental authority shall be remedied by and at the sole cost and expense of the Owner causing such violation”. This covenant requires that all state and locals shall be obeyed. The Maryland noise standards are outlined in Title 26 of the Code of Maryland, in section 26.02.02. The specific law that covers dirt bikes and ATV’s is in Paragraph 5 of the noise standards:

A person may not operate or permit to be operated an off-road internal combustion engine powered recreational vehicle, including, but not limited to, a dirt bike, an all terrain vehicle, a go cart, a snowmobile, or a similar vehicle, on private property closer than 300 feet to a neighboring residence or the associated curtilage, without the written permission of the affected resident, unless it can be demonstrated to the Department that the vehicle can be operated within the noise limits specified in Table 1 under §B(1) of this regulation.

2)The noise violations are also addressed in Paragraph 4.1 under the “nuisance” category: “No nuisance shall be maintained, allowed or permitted on any part of the Property, and no use thereof shall be made or permitted which may be noxious or detrimental to health or which may become an annoyance or nuisance to the neighborhood”. Since the noise level exceeds the 65db maximum level specified for residential land use, the noise is clearly a nuisance.

3)Paragraph 4.11 states: “No unlicensed vehicles, junked vehicles, trucks rated more than one ton, trailers or campers may be parked or stored on the Property unless parked or stored in an enclosed garage.” Lot 17 does not comply with this covenant as at least one untagged vehicle and multiple trailers have been stored on the lot for several years.

4)Paragraph 4.13 states: “No lumber, metals, bulk materials, garbage, refuse or trash shall be kept, stored or allowed to accumulate on any Lot.” Lot 17 has a pile of tires and several piles of lumber that need to be removed or put in an enclosed garage.

Rationale for Enforcing the Covenants

As stated in the Bylaws, the Board has a responsibility to maintain property values for everyone in the Association. The recent violations need to be addressed for the following reasons:

1) The noise from the dirtbike makes it difficult, if not impossible, to sell one’s property. Or, it may result in a sale that is considerably lower than full assessed value. In order for property owners to sell their property at market value, all owners must comply with the noise and nuisance provisions in the covenants. Additionally, the restrictions on untagged vehicles and trailers and bulk materials in the yards are intended to help maintain property values, and therefore Board has a responsibility to enforce those covenants.

2)An additional concern is that the only people who would buy a house across the street (which is going up for sale soon) are those who don’t mind the dirt bike noise and would be likely to make their own noise. In order to maintain the quiet, peaceful environment described in the Minnetoska Declaration, the Board needs to enforce the state noise law.

3)The noise from the dirtbike does not allow property owners to enjoy their property, and as a result, it reduces the value to them. This is an economic loss that the Board has an obligation to address. For example, if someone is paying $2000 a month for their mortgage, but the noise is too annoying to allow them to enjoy their property, they can ask for compensation of their mortgage payment in small claims court—that is often how noise disputes are handled. But the property owners can also engage the Board in court if the Board shirks its responsibility to enforce the covenants.

4)The Maryland noise pollution law ensures that there is an adequate noise buffer between properties and that the noise is kept to a level that most people find acceptable. There are a number of HOA’s that ban dirt bikes and ATV’s on properties that are smaller than 10 acres or so, but the Maryland law means that the Association does not have to specify a minimum lot size. The Maryland law is fairly restrictive, in that if you are riding within 300 ft. of another residence, you must get approval from that other property owner if the sound level is measured to exceed 65db. That requirement makes it impossible to ride legally on small lots (less than 5 acres) unless your neighbors agree to the noise. The Board understands the value of the noise buffer in maintaining a pleasant community, and is committed to enforcing this noise law as a practical way to maintain a peaceful environment.

Summary of Prior Communication

The Board attempted to communicate with the Lot 17 owners as early as 2014 (summer) regarding the dirt bike noise. The Board sent anotice to all property owners reminding them of their obligation to keep recreational vehicles off the streets and to limit noise, and followed up with another notice in 2015. However, the noise started up again in April of 2015, and the Board had a “cease and desist” letter through the Association lawyer, instructing the Lot 17 owners to comply with the Maryland state noise pollution law. When the noise increased after that letter, the Board president spoke with the Garrett County Court Commissioner about filing a criminal charge for harassment and disturbing the peace. The Commissioner agreed to accept the complaint, but required that we discuss the issues in person with the lot 17 owner. This was done in July of 2015, and the noise actually decreased to a tolerable level. In May of 2016 the Lot 17 owners acquired a new dirt bike that was considerably louder than the one use in 2015. The dirt bike was not being used in a way that suggested intentional harassment, but the noise levels exceeded 85db inside the living space (kitchen area) of the neighbor across the street, so it clearly violated the state law and was intolerable. One of the Board members attempted to discuss the noise with the Lot 17 owner, but was told there was nothing he could about it, so the Board agreed to set up this hearing as a final step before taking legal action.

The Board has attempted to remain respectful and informative in all communications with the dirt bike owner, and believes that all provisions of the Maryland Homeowners Association Act have been addressed in full. We are using the more detailed guidelines in the Maryland Condominium Act, which advises a hearing prior to legal action.

Proposed Sanctions

If another solution cannot be found in the hearing, the MPOA intends to file a lawsuit in District Court for breach of contract. The MPOA will ask for compensation of all legal fees, a fine for loss of enjoyment of our properties, and fines for future violations. This lawsuit will allow address the other covenant infractions including the removal of untagged vehicles, trailers and bulk materials from the yard. The MPOA will ask the court to establish a deadline for compliance and fines for noncompliance after the deadline.

Meeting Minutes

In attendance:

Board Members (6 of 7): Neil Davis, Barbara Davis, Linda Eisenhart,Reds Bassford, Eric Moyer, Jay Hauhn.

Tommy and Jodi Smith did not show up, although Jodi attended part of the general meeting that preceded the hearing.

Discussion

Since the Smiths did not attend, there was limited discussion. Linda still has reservations about including the covenant violations that did not pertain to the noise. Jay abstained from comments as he will be leaving the Board at the next meeting. The other Board members were in agreement that we need to go forward with the breach of contract lawsuit, and that we need to include all infractions to ensure the best chances of making the lawsuit effective.

Action Plan:

The Board agreed that the only option left was to sue the Smiths for breach of contract for violating the covenants. Neil suggested that we make one last attempt to talk with the Smiths, since a lawsuit is going to be expensive and disruptive, and we want to make sure the Smiths fully understand the situation and why we are taking action. Linda will clean up these minutes and give the Smiths the option to talk with either the entire Board or just with Neil. In parallel, Neil will talk to the lawyer and get a better idea of the costs involved and how long he expects this will take.