As most of the Members know, the VOCC is currently in litigation, part of the claim is for placing a park and path in the restricted reserve and the changing the use of said restricted reserve.
This lawsuit has been the subject of several Home owners during the Home owner input session at the Monthly HOA meeting and most members do not seem to realize how serious this lawsuit is and what it has to do with.
Will the VOCC win this case? There is no way to tell for sure if the VOCC will win or loose, however we can look at other court cases to see how other HOAs have fared in similar situations.
There is an article from a California court case that is very similar to the lawsuit that the VOCC is currently in. The article is almost word for word what has happened in the VOCC. This of course, does not mean this is how the judge in Texas will rule in our case.
The case starts off with an HOA that decides to change a common area that in this case was a community slope. The slope was restricted to landscape use and the HOA converted it into a Park, complete with a walkway with little or no input from property owners that lived adjacent to the newly constructed park.
The HOA in this California case attempts to use their governing documents as the reason the HOA could change the use of the land and construct the park, the Judge did not agree with the HOA's claims. The result was a lawsuit that cost that community over 1/2 million dollars.
Here is a link to the article. http://www.hindmansanchez.com/resources/article/common-area-changes-require-input-owners-compliance-governing-documents/
What's the VOCC Case about:
The one of the lawsuit's claim is less to do about the placement of the playground or path and more to do with the changing the use of the restricted reserve or in our case the non use of the restricted reserve and the added burden that this change in use has created to the property that is adjacent to the playground.
Background of the VOCC Case
The play ground placement was a hot topic at the time and here's a few excerpts from the Annual meeting minutes that are available at: http://vocc.info/2013-02-21_General_Mtg_Minutes.pdf
The Opposition (this does not include all of the opposition's comments)
"The community was not notified of the purchase or location of the play structure."
"The builder’s master plan had the playground by the pool."
"The builder promised homeowners that no building would be placed on the green space."
"Homeowners on the greens pace paid a premium to live there"
"The opposition believes they have been asked to watch or "police" the structure, or at least they have a sense of added responsibility"
The Proponents (this does not include all of the proponent's comments)
"75% of the community is within 900 feet of the proposed site"
"Modern builders place pocket parks in communities which are spread around a neighborhood, some close to homes. "
"...the Board concedes that VOCC was not "master planned" for pocket parks and we are retrofitting"
"The play structure has already been purchased and was scheduled to be installed February 20."
"The Board agreed to postpone installation to hear opposition feedback."
"...builder promises made twelve to fifteen years ago are no longer binding"
"Per our governing documents, the Board has full authority to make an independent decision on project purchase and placement and is not required to notify the community beforehand on such decisions."
Note:The most relevant line from the minutes of this annual meeting is that our HOA claims that our governing documents give it the authority make independent decisions on project purchase and placement.These are similar to the claims that the HOA in the California case quoted and the Judge in that case and the Judge in the appeals case struck down these claims as a legitimate reason to change the use of a property.
The Yahoo Group VOCC1
The playground placement was also the subject of several emails on the now deleted Yahoo Group by several members. Some of the emails were for the placement and some were against the placement, a copy of the a few of these emails are available at http://voccproud.com/p/2-19-2013MembersRespondToPlaySet.pdf
"I also cannot attend tonight due to a business commitment. About 2 years ago replacing the playground equipment was voted down at the home owners meeting. When I posed this recently privately to the board, I was basically told the board can make these decisions regardless of what we think."
"I see on Feb 2012 “baby pool shade cover and permanent message sign are the primary neighborhood projects at this time.” My first notification of the placement of the playground was when utility flags and stakes were placed outside."
"I have read all of these emails from the first day the playground was talked about and I think the location is perfect for many reasons."
"Why can't the play ground go in the middle of the trees opposite across the parking lot from where it used to be? It is a bigger space and it has parking. It doesn't have to go in the same exact spot as the old one. It is no closer to the street than the proposed site."
"I think a centrally located play structure is a great idea for our neighborhood. Putting it in over by the pool means almost everyone has to drive to it. Putting it on the greenway off Biscayne Bend provides the easiest access for the most people."
"...I think the safest place is by the pool the majority of the people it is going by are not
against a playground just the location it adds responsibility to some homeowners that do
not have young children 3 driveways back up to it there's just a lot of concerns that
should be heard I honestly felt before we'll it's not by me so why get involved then I realized how much it will affect the homes directly by it & the traffic I genuinely believe it is not a safe location it is very close to the road 3 driveways face it I don't know why anyone would have problems w it going by the pool..."
By reading the minutes that are posted online and the email exchanges from the Yahoo group, one can see the similarities between the California case and the one that the VOCC is currently litigating.
The issue is not really the placement of the playground. The issue is the changing the use of the restricted reserve or in this case the non-use of the reserve and the adding a burden on the homes that are closest to the new park.
How much is this costing the VOCC?
If the HOA wins great, The lawsuit will not cost the HOA anything as we can seek attorney fees!
We also have insurance to help us out in the cost. As per a meeting with the HOA Board in September of 2014, if we are sued for the placement of the playground, the law suit will only cost the HOA $1,000, however recent post on Next door.com suggest that this lawsuit is costing us much more. https://villagesofoakcreekcolony.nextdoor.com/news_feed/?post=14792798
If the HOA looses, how will the HOA pay for the damages?
This may be done with a special assessment as the HOA has about 40K in the reserves. This means that every Home owner may have to pay an extra assessment in order to pay for the damages of the case.
If the damages are similar to this California court case ($500,000) that could mean that every home owner could potentially have to pay $2,066.11 ($500,000 damages / 242 Homes) in a special assessment on top of the normal dues of $520.00.
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