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Most of the crowd of about two dozen who came to the Rancho Murieta Association monthly meeting last week were drawn by the issue of exclusive use of common area land.

The board has been unsure how to deal the law that took effect in January 2006, and new exclusive uses could require a vote of 67 percent of the membership for approval.  

In July, the board imposed a moratorium on granting new requests for exclusive use.

"There are various opinions on this new law and its requirements," said President Jack Cooper. "Our attorney said we could go ahead with it. They've since said you'd better look at it again."

"We have to rely on legal opinions that have been at best contradictory," Director Mel Standart said. "We have to obey the law."

Realtor Karen Hoberg, who lives in the community, said the moratorium affects 925 lots on the North. "The prices of these properties as well as their salability is being drastically reduced," she told the board, offering an example of a house that suffered a steep drop in price. "It is imperative that the board protect the rights and the privileges of the homeowners as set forth in the CC&Rs."

The CC&Rs allow owners of cottage, townhouse and circle lots to lease up to 1,200 square feet of common area immediately adjacent to their homes for heating and air conditioning equipment, propane tanks, decking, unroofed patios, landscaping and swimming pools.

Exclusive use agreements are also sanctioned in a special ordinance for Rancho Murieta the county Board of Supervisors passed in 1977. 

"I credit the board for taking a deep breath and trying to figure out what to do with this problem," said neighbor Wilbur Haines, who has repeatedly urged the board to comply with the law.  

Haines disagreed with Hoberg's figure of 925 lots, saying most lots already have exclusive use agreements in place, and the law only applies to new requests.

Haines said he also disagreed with the legal opinion offered by RMA legal counsel RMA attorney Steven S. Weil of Berding & Weil Inc. at the July board meeting.

Weil's position was the CC&R provisions "constitute a separate approval percentage, and the members, when they adopted their second amendment to the CC&Rs, chose to give this power to the board. ... And, in my judgment, this law was not intended to take that power away."

Said Haines: "Steve is blowing smoke."

Haines' position is the governing documents do not provide a voting percentage in accordance with the law, and believes "we probably ought to do a CC&R amendment" to put one in place.

Craig Watson has one of the lots that don't have exclusive use leases. After living on the South for a decade, he started looking for a home on the North in January. "One of our criteria was to put in a pool, to buy a house with a pool," he said after coming to the podium.

"We chose a house that was built on a cottage lot. It had a large open space next to it. ... I wouldn't have bought that property if I'd known this was the future we had to look forward to."

Watson bought the property in May and had plans for a pool drawn up three times. "We wanted to meet your requirements," he told the board members. He brought the plans to RMA for approval in July, just as the moratorium was imposed. "So, would this house be worth less than what I paid for it? It would," Watson said.

"There's no guarantee that an exclusive use would be approved. ... The neighbors are involved," said Director Paul Gumbinger, an ARC member.

Tom Trapasso offered a different perspective.  His estate lot backs up to two circle lots.

"Over the years this board and the (Architectural Review Committee) has granted construction basically paving over a lot of the common area behind our house," he said. "We have a lot of common area behind our house ...  that was one of the big selling points ... Our view was excellent and now it's mostly been paved over. Who's protecting our rights? ... We have so many people fighting for open space against the developers ... and we're giving it away ourselves for $2 a square foot."

At the RMA's request, the problematic circle lot concept was abandoned in favor of estate lots when the South was developed.  On the North, the Fairways is the first subdivision with estate lots only.

Budget, fees approved

The RMA board approved a budget that will up member assessments by 4 percent for 2008. The increase takes effect in January, when monthly dues will increase from $131.75 to $137.

The amount includes a $31.79 assessment for cable, according to Finance Manager Colleen Hagyard.  

The board approved changes in the architectural fee schedule, but left the fee schedule for administrative, cable TV and maintenance services unchanged.

The new architectural control review fees add another $600 to the cost to put in a swimming pool, bringing the cost to $1,000.

The fee for reviewing plans for new homes was increased from $1,150 to $2,600. Five new custom homes are expected to be built next year, down from an estimated 10 this year.

A new $2,500 fee category was created for home rebuilds, which are expected to increase as the community's housing stock ages.

A minimum fee of $500 for road mitigation will be placed on all construction projects when the fees take effect Jan. 1.  

The preliminary budget contained projected revenue from the fee increases. This was removed at the budget workshop. At that time, board members said they wanted to use 2007 actual revenues instead of estimated revenues.

Cable projects approved

The board approved expenditures of $23,350 for projects that are phases of the ongoing plan to improve the cable system and offer more programming. "This is all infrastructure," said General Manager David Stiffler of the projects planned for this year. 

The board also agreed to redirect $15,500 that was allocated last month to purchase a cable splicing tool so the work can be outsourced.


Wilbur Haines's picture
Joined: 08/07/2007
Posts: 474
Post rating: 470

Here is the statute

Here is the statute restricting exclusive use grants which became effective last year. It plainly requires a vote of the membership, either 67 percent of the entire membership or a different percentage if we adopt one (which seems the most effective way to respond and get out of this jam).  Note there is also a bypass for land which is truly inaccessible:

 

1363.07. (a) After an association acquires fee title to, or any easement right over, a common area, unless the association's governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board of directors may grant exclusive use of any portion of that common area to any member, except for any of the following:
(1) A reconveyance of all or any portion of that common area to the subdivider to enable the continuation of development that is in substantial conformance with a detailed plan of phased development submitted to the Real Estate Commissioner with the application for a public report.
(2) Any grant of exclusive use that is in substantial conformance with a detailed plan of phased development submitted to the Real Estate Commissioner with the application for a public report or in accordance with the governing documents approved by the Real Estate Commissioner.
(3) Any grant of exclusive use that is for any of the following reasons:
(A) To eliminate or correct engineering errors in documents recorded with the county recorder or on file with a public agency or utility company.
(B) To eliminate or correct encroachments due to errors in construction of any improvements.
(C) To permit changes in the plan of development submitted to the Real Estate Commissioner in circumstances where the changes are the result of topography, obstruction, hardship, aesthetic
considerations, or environmental conditions.
(D) To fulfill the requirement of a public agency.
(E) To transfer the burden of management and maintenance of any common area that is generally inaccessible and not of general use to the membership at large of the association.
(F) Any grant in connection with an expressly zoned industrial or commercial development, or any grant within a subdivision of the type defined in Section 1373.
(b) Any measure placed before the members requesting that the board of directors grant exclusive use of any portion of the common area shall specify whether the association will receive any monetary consideration for the grant and whether the association or the transferee will be responsible for providing any insurance coverage for exclusive use of the common area

Mike Burnett's picture
Joined: 07/31/2007
Posts: 183
Post rating: 0

CCR's are Outdated

Wil,

I researched this topic online and found data that suggests since the Davis Stirling Common Interest Development Act's passage in 1985, there have been many statutes passed.  RMA's CCR's were revised in 1996, which is eleven years old now. Part of this argument revolves around the misperception that we can rely on the current status of our Governing Documents.  This is not true!  Any Statute that has been passed or wasn't incorporated into the 2nd Restated CCR's of 1996, makes our governing documents obsolete.  Basically, our CCR's are unenforceable (pertinent to the statute passed) under California Law.

One Director at the last meeting stated that they were more confused after obtaining legal counsel on the issue of exclusive use and was apologizing for not being able to make everyone happy.  All I can say to that is look who just fell off the turnip truck.  You can't reason that 1) you don't know what you are doing and 2) you are going to keep doing the same thing to be consistent.  That doesn't make sense and will appease no-one! 

Everyone knows that attorneys like to mince words.  Any attorney that knows the CCR's are outdated by current statute and advises the Board that they can follow their governing documents, in my opinion, is giving poor advice.  The Statute was written after our CCR's were restated.  The rule of law prevails! 

Follow the rule of law and restate the CCR's.  We need to make the restatement of the CCR's a normal course of business and not be afraid to make changes.

T. Hanson's picture
Joined: 08/07/2007
Posts: 318
Post rating: 474

Burnett/CC&Rs/Turnips

Just a test of my IE browser's ability to post on the new RM.com.

On October 24, 2007, Mike Burnett writes:

"CCR's are Outdated

RMA's CCR's were revised in 1996, which is eleven years old now. ..Any Statute that has been passed or wasn't incorporated into the 2nd Restated CCR's of 1996, makes our governing documents obsolete. One Director at the last meeting stated that they were more confused after obtaining legal counsel on the issue of exclusive use and was apologizing for not being able to make everyone happy.  All I can say to that is look who just fell off the turnip truck. "  

Mike, get up to speed before citing "out of date" stuff. RMA's CC&Rs were updated in the 1998 1st Amendment to the Second Restated Declaration of the 1996 CC&Rs you reference. But then, I know you as well as your developers do not want to acknowledge existence of that later document, and your developer loyalty persists, for whatever reasons yet to be borne out. Obviously neither docs can address a later Common Use Law, yet we still retain those self-serving pro-developer Davis-Sterling CAI cottage industry lawyers, just as you did in your abbreviated service on the RMA Board. Sure, our counsel, Berdig & Weil (Steve) at the recent Board session on the Common Use issue, just said "I don't know yet...it depends".  How convenient, to create more business for themselves in "necessary" follow-on consult; churn and earn. You'll note he did the same in the $80K propaganda consult sham on your cherished developer MBA. So, the RMA President cannot be faulted for not wanting to act on bum or absent legal advice; the entire Board and GM can be faulted for continuing with such feeble counsel. That developer counsel needs to be jettisoned immediately, and real land-use "peoples" counsel needs to be retained.  All is to say, we're all on this undesired turnip truck together, and need to get it through the obstacles to a co-op market, with not one left in the road.

T. Hanson

Mike Burnett's picture
Joined: 07/31/2007
Posts: 183
Post rating: 0

Maintenance of RMA's Governing Docs is for our CID

Terry,

RMA's Governing Documents only pertain to our CID and have nothing to do with undeveloped lands outside our Corporation.  I may not have referenced the correct date, but the 2nd restatement of the CCR's is what I was referring to. 

This happens to be the same argument I have used for why RMA should not be managing the Cable System, because it serves the entire CSD Serving area and is not supported by our Corporation or Governing Docs.

When I was on the Board, we wanted to amend the CCR's because they had conflicting sections in them.  That is when the uproar to oust Mike S. began.  Our CCR's are a conflicted mess.  Whoever finalized the restatement should be made to pay to correct them.  Greg Vorster even remarked that he had letters which showed that the Board and Committee at the time ignored our Attorney's legal counsel.

All I am saying is that not only are they conflicted, but they do not align with current statue's and laws.  You can't enforce them without potential legal challenge and saying that we should be consistent in how we have been applying our interpretation of them is equally as stupid!

How you got anything related to the developer out of my remarks to the CCR's is incredulous. 

Chuck Lentz's picture
Joined: 08/07/2007
Posts: 116
Post rating: 38

CID

NMike:

 

21 years here and what the hell is CID??  I get your point and we have lived with it for all of that 21 years but I doubt if 5% know what you are refering to??? Is that short for Idiocy?

Wilbur Haines's picture
Joined: 08/07/2007
Posts: 474
Post rating: 470

CID

Chuck, CID stands for Common Interest Development, the law's term for subdivisions like ours which have common area and are governed by CC&Rs and a Homeowners' Association (HOA). 

Some might say yes, that is shorthand for "idiocy." But here we are.Wink

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