June 22, 2024
Dear High Point Residents
In our May Newsletter, we announced a Vote by homeowners on two governance issues. One was a change to the Covenants & Restrictions and one to the Bylaws of the association. Both were the result of repeated requests by residents for these to be brought to a vote by homeowners. See below for the results of that election.
We also in the May Newsletter described a situation where a resident requested a fence on their property, using the Fair Housing Act of 1968 as their basis, under the sections regarding a Reasonable Accommodation. After much research by trustees and consultation with our legal counsel, it was determined that the FHA takes precedence over all other governance (including our Covenants & Restrictions). A review of cases around the country showed no cases where local governance was upheld by a court decision. Instead, the trustees took the approach to put restrictions on the fence as an alternative to an expensive legal engagement.
In this situation, the resident followed the prescribed requirements of the FHA and submitted documentation that was reviewed by our legal counsel and determined to meet the qualifications of the FHA to require a Reasonable Accommodation. This was a very detailed process that involved a number of steps, overseen by our legal counsel. This matter is therefore completely shielded for privacy purposes.
Our legal counsel agreed that in granting a very specific and limited exception under the Fair Housing Act, association trustees have not diluted the strength, power or enforceability of the Covenants and Restrictions. Combined with the 1994 decision by the Cuyahoga County Court of Appeals in the case of Salvakar vs High Point, decided in favor of High Point, regarding the Covenants and Restrictions, the trustees remain charged with responsibility for enforcing all of the requirements including the prohibition of fences, sheds and other structures, as well as the collection of dues to maintain the association. Any resident who violates or fails to adhere to the requirements will be subject to legal action by the association. We suggest anyone contemplating violating the High Point Covenants and Restrictions consult with their attorney, as we believe the 1994 case law is very well-defined.
As trustees, we understand that residents may not agree with the position we have taken and may feel that this opens a floodgate to disregard the deeded Covenants and Restrictions. We can assure residents that the trustees spent a great deal of time and effort in determining the course of action that was taken. As a result, the trustees believe that not only is it still a fiduciary requirement to defend the Covenants and Restrictions, but it continues to be the obligation of the trustees to take whatever legal action is required to maintain the association. If any resident should need further clarification or understanding regarding this situation, you are welcome to contact any of the association trustees.
Two Governance Issues Proposed for a Vote by Residents
A large number of residents at the annual meeting and over a number of months have expressed to trustees their concern that the trustees were ignoring a majority of residents who wanted changes voted on to modify the association Covenants and Restrictions and Bylaws to allow fences in the development and to give association trustees the ability to borrow money. Over the course of several months, trustees researched and authored proposed changes as requested by these various residents.
o Fences in High Point (a change to the Covenants and Restrictions)
This change to the Covenants and Restrictions requires 90% of the residents in the association vote to approve a change. We have 644 homeowners, so it would have been necessary for 90% of the homeowners to VOTE and 90% to APPROVE any change to the C&R. That would require 580 affirmative votes.
Voting was open to June 21, 2024. A total of 298 homeowners cast ballots for the proposal to allow fences in High Point. That number is not enough to meet the 90% voting requirement, so the modification DID NOT PASS. The final count was 157 FOR the change and 141 AGAINST the change.
o Ability for the Association to Borrow Money (a change to the Bylaws)
This change to the Bylaws requires 50% of the residents in the association vote and approve a change. We have 644 homeowners, so it would have been necessary for 50% of the homeowners to VOTE and 50% to APPROVE any change to the Bylaws. That would require 322 affirmative votes.
Voting was open to June 21, 2024. A total of 298 homeowners cast ballots for the proposal to allow the association to borrow money. That number was not enough to meet the 50% voting requirement, so the modification DID NOT PASS. The final count was 170 FOR the change and 128 AGAINST the change.
Ballots from this election will remain secured and the names of those voting and individual votes will not be released. Association trustees appreciate the large number of residents who cast ballots and thank them for participating. As a result of this election, the Covenants and Restrictions and Bylaws REMAIN UNCHANGED and will continue as they have been since the inception of the development.
High Point HOA Board of Trustees