The Rules of the Road...

Our governance system consists of four documents: Articles of Incorporation, Corporate Bylaws, the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), and our Architectural Committee Rules (ACRs). These guide all of our actions, along with the provisions of California Civil Code and the California Corporations Code. Our Articles of Incorporation were filed in 1982. Our Corporate Bylaws and CC&Rs were amended in 2018, and the ACRs date from 2004. It takes a majority of Owners eligible to vote to amend the Bylaws and the CC&Rs. The ACRs can be amended by a majority vote of the Board of Directors in conjunction with a unanimous vote of the Architectural Committee. However, because HOA's in California are subject to a complex set of legal requirements, all such efforts need to be undertaken with guidance from professional legal advisors.

Why the CC&R's and Architectural Rules need attention...

I don't hear a lot of complaints here in Shangri-La. But when I do, they usually involve perceived violations of our HOA rules. Some people are perplexed why rules are not enforced, while others lament the enforcement of rules they do not understand or agree with. This can create unnecessary animosity and hurt feelings. Fortunately, I haven't seen any sign that the folks in Persimmon Hill are anything other than law-abiding citizens who simply want to understand their duties and live in harmony while they pursue their individual lives. Enforcement is always a touchy subject, because nobody likes to hear that they are doing something contrary to the rules, or that their desires are not in keeping with the rules. And nobody likes to deliver such messages. But our discomfort would be greatly reduced if our rules were more clear, logical, and restrained. This is the crux of our predicament, because our body of rules is unnecessarily dense and in many cases downright illogical. When this situation exists, disrespect for the rules sets in. And that is a corrosive thing we need to fix. It has been reported to me that one of our Board Directors once observed that "no one understands the CC&Rs". While this was undoubtedly an offhand comment, it reflects an underlying truth that our CC&Rs are very complicated. For example, Section 7.3 of our CC&Rs says that Owners will be responsible for the maintenance of their own landscaping. So far, so good. Then it proceeds to repeat the identical thought two more times within the same paragraph. The size and complexity of that paragraph could easily be cut in half without losing any of its meaning. (That reminds me of what Mark Twain is reported to have once observed: "If I had more time, I would have written less.") Why have our documents gotten this way? I don't know for sure. However, in my career I have negotiated hundreds of contracts and agreements that have involved legal drafting. All too often I have had to aggressively edit lawyers' submissions to make them understandable. This has taught me that the best way to approach drafting legal documents is to first put down on paper all the features you want to be reflected. Then you give it to the attorneys to spruce up. I suspect our past efforts may have gotten that order in reverse.

a few Examples Why the CC&R's Need Amending...

Paragraph 2.2. "No Commercial Use. No part of the Project [a defined term meaning all of the property in Persimmon Hill] shall ever be used or caused to be used or allowed or authorized in any way, directly or indirectly, for any business, commercial, manufacturing, merchantile, storing, vending, or other such nonresidential purposes." Does this mean I can't work from home? Can I never have someone come to my home for a business purpose? Sounds pretty strict, especially in light of the California Business and Professions Code section 16600 which invalidates most restraints of trade. And while it is true that CC&Rs can place limits on commercial activity, Civil Code section 4350 requires such restrictions to be "reasonable". And I submit that a blanket prohibition against all commercial use does not pass that test. How about this as an alternative: "Limited Commercial Use. Owners may conduct business activities at their Lots as long as those activities do not produce noticeable traffic increases or create noticable annoyances (such as smells, sights, sounds, lights, vermin, etc.) for their neighbors (all in the sole judgment of the Board of Directors)." Paragraph 2.6. "Animals. No animals, reptiles, rodents, birds, fish, livestock or poultry shall be kept, bred, or raised within the Project for commercial purposes, except by a minor child incident to his or her participation in a sanctioned youth program by a qualified youth or charitable organization, such as 4-H, Future Farmers of America, Boy or Girl Scouts, or the like." Why bother listing reptiles, etc. since they are clearly also animals? So, my child can raise a cow, but I can't sell it? Is that "reasonable"? How about this as an alternative: "Animals. Animals are allowed on the Lots, provided they do not create noticable annoyances for their neighbors (in the sole judgment of the Board of Directors) and provided that no Owner shall keep more than one large animal (e.g. horse, cow, sheep, goat) per each one-half acre of area dedicated to the confinement of such large animals on the Owner’s Lot." Paragraph 2.10. This states that no Owner shall rent his property for less than 180 days. While opinions vary at to whether this is a good idea or not, as of January 1 of this year a new law went into effect (Civil Code section 4741) saying that no HOA rental restriction can go beyond 30 days. Moreover, if we don't fix this in our CC&Rs by July 1 of this year, our HOA could be subject to fines. Clearly, this has to be fixed, pronto! Paragraph 2.11 states that clotheslines shall only be erected in backyards. Then it goes on further to state "There shall be no exterior drying of clothes, towels, or other fabrics on patios, porches, or other areas." Other areas? Would that not include back yards? Does that mean you can put up a clothesline in your back yard, but you can't hang clothes out there to dry? An easy fix. Paragraph 7.3. Buried deep within that very dense paragraph: "No Owner shall remove, alter, or injure any tree or shrub placed within the Project without the prior consent of the Architectural Committee." Really? I need the Architectural Committee to tell me it is okay to prune my roses? This is Persimmon Hill, not Permission Hill. Best solution for this one is to eliminate it. Paragraph 8.8 in the section on the Architectural Committee contains the following sentence: "A disapprovals shall include both an explanation of why the proposed change is disapproved." Obviously, the proof reader missed something in the last draft. My guess is that sentence was intended to fulfill the legal requirement that disapprovals include both the reason for the disapproval and a description of the procedure for reconsideration of the decision by the board, per Civil Code section 4765. Another easy fix.

a few Examples why the architectural rules need amending...

Section I.D.2. "Ojai city tree and landscaping ordinances govern the trimming of trees, especially oaks, and are referenced to apply to the Persimmon Hill project." Section I.A.2 already says that Ojai's ordinances apply to Persimmon Hill. Why the repetition? Solution: eliminate the duplication. (By the way, since we are in the city limits of Ojai, all of the city's ordinances apply to us, whether we say so or not.) Section I.F.2. "Chain link and other wire fencing is discouraged..." The Ojai Municipal Code outlaws chain link fences without a conditional use permit. Why do we just say "discouraged"? Solution: put our language in compliance with the Ojai code. Section I.E.1.b.i. "The permissable limit for exterior lighting originating on a property at no point is to exceed a maximum of 0.5 vertical foot candles, from sunset until 9:00 PM and at no point is to exceed a maximum of 0.25 vertical foot candles at any time after 9:00 PM until sunrise, as measured at the property line and curb line as applicable." The Ojai Municipal Code for lighting sets this limit at 0.1 vertical foot candles, which is much tighter than ours. Why do we bother spending two pages in our Architectural Rules to spell out lighting requirements that are less stringent than those already imposed by the city and incorporated by reference in our rules? Solution: eliminate our redundant and inferior lighting provisions. Section I.G.4 says that no satellite dishes beyond two feet in diameter can be installed. However, Civil Code section 4725 says we cannot limit such dishes unless they are larger than three feet in diameter. Solution: amend our restriction. Section I.G.4 says quite simply "No clotheslines shall be erected in view of the public." However, this is different from the standard expressed in the CC&Rs, which is different from the guidance of Civil Code section 4753. Obviously, all statements need to be in harmony with the law. Section II. Plan Review. This section is arguably the most important part of our Architectural Rules, because it sets forth how new projects will be evaluated and either approved or disapproved. Unfortunately, there are inconsistencies between how the CC&Rs describe this process and how the ACRs describe it. For example, the term "Preliminary Review" is used in the CC&Rs for a process that is called a "Conditional Review" in the ACRs. In order to achieve clarity for all parties, all material aspects of the architectural review process should be amended in both documents to precisely mirror each other.

Why this all makes sense...

In addition to the many edits that should be made for legal compliance and logical presentation purposes, there are also many edits that could be made which would make the documents easier to understand. Not everything can be simplified, because there are many things that need to be precisely spelled out. But if we applied ourselves to this task, I'm confident we could produce a body of HOA documentation that would be a model of clarity, and that we as owners would greatly appreciate. To the extent that prospective owners in an HOA look carefully at our documents to judge if ours is the type of community they want to join, a better set of HOA documents could also be a positive force to enhance our property values. And that, my friends, is money in the bank.