SMOKY HILL HOMEOWNERS ASSOCIATION
Covenant and Rule Enforcement Policy
RECITALS:
A. For the
benefit and protection of the Association and of the individual owners, the
Board deems it desirable to establish and operate by procedures to insure
proper process
in cases where there is a question of compliance by an owner, a tenant, family members, and guests
with the provisions of the declaration, the bylaws, or the rules and regulations.
B, While the Association encourages the
neighborly approach that residents first communicate
with each other regarding a perceived violation of covenants, laws, rules and/or
regulations in an attempt to resolve any problems, the intent of the Board is
to establish a procedure for resolving
violations of the Association's covenants, rules and regulations.
C, The Revised
Smoky Hill Covenants dated January 30, 2003 and recorded in Arapahoe County Colorado at reception number
B3022630 on 1/31/2003 specifies the
procedures that will be followed and the rights of each lot owner.
(Section 9) This section of the
recorded covenants is repeated as attachment A to this policy.
THEREFORE, II' IS RESOLVED that the following procedures shall apply to violations of the declaration, bylaws, or the rules or regulations other
than those concerning payment of assessments by members.
INFORMAL RESOLUTION OF VIOLATION
Any owner, owner's tenant, or agent
of the Association may directly request that an owner or resident cease or
correct any act or omission, which appears to be in violation of the aforementioned
documents. It is the preference of the Board that residents of the community attempt informal resolution prior to seeking formal resolution.
In the event the perceived violation
would also be a violation of Federal, state, or local laws
or regulations the Board may request
the complaining resident to contact the appropriate government agency to report the perceived violation.
1. The Associations Board of
Directors or its agent may initiate Formal Resolution of violations upon observation of a violation.
2. Lot Owners of the
Association may initiate a request for review of a perceived covenant violation by phoning, writing or emailing their concerns to
the Associations agent or any member of the Board of Directors.
3. Any action taken by the
Association shall be strictly within the discretion of the Board. The Board
shall use its judgment in deciding how to proceed regarding any complaint
4.
When the Board, a committee member, or the
Associations agent believe that action is required
regarding violation(s) of covenants, rules and regulations, a letter will be sent to the
accused lot owner identifying the violation(s) and setting forth a timeframe for correction ("First
Notice").
5.
A subsequent violation (or non-correction of the violation, based
on the "Notice" will result in another letter ("Second
Notice") being sent to the owner, again
specifying the violation, and advising the owner that they have the right to meet
with the Association's Architectural Review Committee to discuss the matter and
proposed correction of the violation.
Should the lot owner fail to contact the agent or any member of the
Board, that lack of response will be deemed
as agreement with the violation,
6. The notice of the right to a
hearing shall inform the owner they must correct the violation or
meet with the Architectural Review Committee to discuss the violation within 30
days of the date of the letter ("Second Notice"). The
Association's agent or member of the Architectural Review Committee will coordinate with the lot owner to establish the
hearing date, time, and location.
7. If the lot owner charged
with a violation responds, requesting a hearing with the Architectural
Review Committee, a hearing shall be set and the date, time, and location communicated to the lot owner. Such
hearing shall be open to attendance to any person having the right to attend
any meeting of the Board. The Committee may restrict attendance to the meeting
to only those parties to the dispute and their witnesses upon the request of any party to the dispute or on the
Committee's own initiative. Any
decision to restrict attendance to the hearing shall be made by the Committee in its sole discretion when the
Committee believes that confidentiality shall be in the best interest of the Association. Any such hearing
conducted with restricted access
shall be in accordance with rules regarding meetings in executive session.
8.
The hearing procedures shall be as follows;
a. The Committee,
through the chair of the meeting, shall direct all proceedings at the meeting.
The chair shall also have complete authority to decide what evidence shall be accepted. No person shall speak
without being recognized by the chair and the chair may limit the amount
of time any person may speak. The failure to
comply with the directions of the chair or otherwise conduct an orderly hearing may cause the meeting to be
adjourned by the chairman.
b. The
Committee, through the chair of the meeting, will describe the specific provision of the
declaration or rule or regulation, which is said to have been violated, including the date and place and/or read
the written complaint to the accused.
b. The
person charged shall be asked to admit or deny the charge. The person charged may
speak for himself or may be represented by counsel throughout the hearing.
Failure to respond or attend the hearing will
be construed as an admission of the alleged
violation.
c. If the charge is denied, the complaining witness or witnesses shall
describe the details of the circumstances at the
hearing.
d. The accused shall have the opportunity to confront each witness
against him.
e. When all complaining witnesses have been heard the accused may make statements in rebuttal, and may provide witnesses in support of his position. The complaining witnesses may ask questions of each such rebuttal witness in turn.
f. If the alleged violation is determined to be valid, the owner shall be informed of a deadline to correct the violation. The owner will also be informed of their right to appeal the Committees decision to the Smoky Hill Homeowners Association Board of Directors. Should the owner desire to appeal the decision, they must contact any member of the Association's Board of Directors to be placed on die agenda of the next regularly scheduled meeting of the Board.
g. Should the owner of the property desire to appeal the Architectural Review Committee's decision to the Association's Board of Directors, the decision of the Board of Directors shall be final. The decision of the Board shall be recorded in the regular minutes of the meeting, and that decision communicated to the property owner.
9. In the event the
violation is of a continuing nature, or is a repeat of the same violation that
was previously corrected by the lot owner, or if the violation constitutes a threat or the health, safety, or
welfare of the residents or the property within the community, or the
circumstances otherwise justify such action, the Association, acting through the Board of Directors may institute an
action in a court of competent jurisdiction to pursue legal remedies including seeking
injunctive relief to abate the violation immediately without proceeding through
steps outlined above. Nothing in this policy shall constitute an
election of remedies nor preclude the Board from seeking assistance from other
enforcement authorities such as
police, fire, or animal control
10. The Association shall be entitled to reimbursement of
its costs including
reasonable attorney fees, court costs, and other legal costs
incurred in all enforcement activities from
any Lot Owner who has committed a violation.
Nothing in this paragraph shall be
construed to prevent Lot Owners from recovering their costs
as otherwise provided by law,
Procedure adopted this 13th day of December, 2005 by
Resolution of the Board of Directors.
By:
_______________________________________________
President, Smoky Hill Homeowners Association
From the Revised Smoky Hill Homeowners Association Protective Covenants,
dated January 30,2003:
Section 9. Enforcement
of Protective Covenants
Section 9.1
The Board of
Directors or any Lot Owner shall have the right to enforce, by any proceeding
at law or in equity, the provisions of this Declaration, subject to the procedures
described in section 9.
Section 9.2
No right of action shall accrue, nor
shall any manner of action be brought or maintained by anyone
against a Lot
Owner unless the Lot Owner has received notice and has been presented with the opportunity of a hearing before the Board.
Section 9.3
Upon presentation to the Board or the
ARC, by any Lot Owner, of any complaint concerning a violation
of one or more of the provisions of
these Revised Covenants, the Board shall:
a.
Notify the Lot Owner, who is the subject of the complaint, by certified
mail, return receipt requested
or personal
delivery with signed receipt by Lot Owner, of the nature of the complain.
b. Afford the Lot Owner an opportunity to
respond to the complaint in writing, or by hearing, before
the ARC or the designated property
management company employed by the SHHOA within thirty
(30) days of the date of the notice. The Lot Owner may
submit letters or present the testimony of
other Lot Owners to challenge the
complaint.
If the Lot Owner
fails to respond to the notice of hearing, or (he ARC or its designated
property management company employed by the SHHOA, the ARC or the designated
property management company employed by the
SHHOA determines that the complaint is valid, the SHHOA, the ARC, or designated
property management company employed by the SHHOA shall notify the Lot Owner to
cease and desist the actions or situation
that resulted in the complaint. Such notice shall be sent certified mail,
return receipt requested, If the Lot Owner fails to correct the situation
that resulted in the complaint within thirty (30) days of the date of the
notice, the Board of Directors may institute, maintain and prosecute am action
in the court. In any action
instituted or maintained for enforcement of
these Revised Covenants, the prevailing party shall be entitled to recover its
costs and reasonable attorney's fees incurred pursuant thereto, as well as
damages or other sums awarded by the Court, Reasonable attorney fees shall
include counsel's pre-litigation work as well as charges incurred after the filing of the suit.
Failure by the SHHOA, the ARC, or
designated property management company employed by the SHHOA or any Lot Owner
to enforce any covenant, restriction or other provision contained in these Declarations shall in no event be deemed a waiver of the right to do so thereafter.