Given the gracious demeanor of and engaged conversations with the two Board members who attended all three of the ACPA Open House events last week, I must say, I was rather disappointed by the way the 2019 Annual Home Owners Meeting was conducted on Tuesday.
The meeting got off to a slow start as last year’s minutes were circulated for approval. Minutes I might note that did not in any way mention a Deed Restriction effort, although Bill Harrison later stated they began this effort over two years ago. We sat through presentations from the school board, despite the fact the elections are not being held this year, and from the city, which is also not having elections, though at least Steve Babick kept his comments short and expressed a genuine interest in our concerns. We then went through approximately one hour of presentations from each Board member regarding the activities of the Board, followed by (what were then rather redundant) Board candidate speeches. I must say I appreciated Bob Smith’s Nextdoor joke and applaud his hope to build an advisory committee from different age demographics of the neighborhood.
At last, Bill Harrison, Chair of the Deed Restrictions Committee, took the podium to discuss the Proposed Deed Restrictions (PDRs) at approximately 8:30pm. I found Mr. Harrison’s dismissal of ACPA’s efforts to “picket and petition” as being emotional raucous-making rather ironic, especially given the Board’s obvious effort to sensationalize the leasing issue with their anecdotal stories that seem to center around nudity, pornography, and parties. I would like to think that ACPA’s effort to provide balanced information grounded in research is apparent to most. We have even made changes to our information and posts when people have told us that something seemed slanted or inaccurate to them. To the extent there has been any stirring of the emotional pot, I would dare say it has been on the part of the Board, not ACPA.
I also found Mr. Harrison’s analogy between the alleged deed restriction brouhaha in 2009 and this one to be substantively inaccurate. Residential Purpose covenants have been litigated in Texas dating back to the 1950's. By the time Country Place got around to proposing a Residential Purpose covenant in 2009, they had been cussed and discussed by every major court in the state. Unlike these leasing restrictions, a Residential Purpose covenant has NO effect on alienability. Yes, it infringes on the activities you can undertake in your home, but the provision proposed was clear and unambiguous. What’s more, it obviously attempted to balance the owners’ interests with nuisance concerns, unlike the restrictions we are grappling with today.
Conversely, short term rental (STR) restrictions are brand spanking new because the prevalence of the issue given the rise of internet and the sharing economy is brand new. It has been less than a year since the Supreme Court of Texas conclusively ruled in Tarr v. Timberwood that even owner-absent short term rentals were not barred by a Residential Purpose covenant. They had settled the matter as to owner-present short term rentals (i.e. boarders) nearly 70 years ago. The litigation vortex is just beginning its first rotation around STR covenants, sucking in cities and HOAs alike. One of ACPA’s greatest concerns that it has shared with neighbors is litigation risk. Of course, ALL deed restrictions increase litigation. Suits must be filed to enforce the restrictions against owners who do not comply. Likewise, reticent owners, when given the grounds (as we believe these restrictions do), will sue to oppose them. That is inevitable. But writing an STR deed restriction before the courts have had the chance to address the issue of how far is too far when it comes to impinging on the sacred property right of alienability is simply asking for trouble.
I read the deed restrictions prior to purchasing here in 2014 and personally didn’t have a problem with a single one. If I read these Proposed Deed Restrictions prior to buying, it wouldn’t matter how lovely the grounds are, I would not consider buying here for one second. So no, I do not accept Bill Harrison’s faulty analogy (I think we are on logical fallacy #8 for anyone keeping count) of this effort to that in 2009. The only emotional plea in the entire ACPA website is a plea to neighbors to endeavor to understand one another’s perspectives in the spirit of community. STRs, conceptually, aren’t even discussed on the website because they are an emotional issue. That said, if I have to hear one more time the lame argument that these restrictions are vague because everything ever written is subject to interpretation, I might just scream, and that would be emotional. Moby Dick is not about the tea customs of Japan. Ask any hermeneutics professor. But I digress.
Every conversation I have personally had with Board members since my involvement in the PDR effort began has, at some point, included commentary that many of their choices and actions are driven by the fact that it is difficult at best to engage the community. The word “apathy” is thrown about regularly, as well as comments regarding minimal participation from the neighborhood as a whole in surveys, board meetings, the voting process, and activities. And so, I find Mr. Harrison’s dismissal of our efforts as common fodder of the deed restriction proposal process ironic at best, if not downright hypocritical. Shouldn’t he be thrilled that neighbors are actually engaged, involved, showing up, stepping up? It seems the Board would respect and applaud the engaged participation of homeowners for all their complaint about our lack of participation. Pick a side gentleman. Do you want to hear what the homeowners you allegedly represent have to say or not? Given the fact that these PDRs were NEVER presented to the neighborhood as a whole for discussion prior to paying God-only-knows how much in legal fees to finalize them, information meetings were ended with homeowners’ hands still raised, and we were begrudgingly granted a whopping 25 minutes’ worth of Q&A, most of which was monopolized by their attorney with what appeared to many of us to be a thinly-veiled effort to run down the clock, it is really looking like the answer to that question is no.
And what was up with that attorney? I mean, we all know attorneys can talk (I’ll volunteer as a case in point), but I’ve never heard an attorney take so long to say so very little. In my not so humble opinion, his inability to create a well-written set of deed restrictions with, at a minimum, the proper capitalized use of the only defined term, has now been outdone by his inability to make a tangible argument based on something other than illusory assurances. His robotic response was basically, “Yes, it could be enforced that way given how it was written, but the Board doesn’t intend to enforce it like that, and if they tried to, no judge would let them.” I’m paraphrasing of course. I’m waiting for a transcription of the meeting that will be posted here shortly so those of you who weren’t there can decide for yourselves if you share my perspective. The question I would like to know, and several neighbors asked to no avail, is why didn’t he actually write what they intended to enforce?
Their attorney stood strongly by his definition of leasing as referring ONLY to giving up exclusive use of the home entirely to another who then takes up exclusive use. Of course, the Q&A was shut down as soon as he finished that explanation, so none of us could ask him to explain then what the prohibition on “leasing” individual rooms even meant. Nor could we ask how he can say house sitters were permitted under his definition. If you hire a house sitter when you travel, you are giving up entire occupancy to another who will entirely occupy the home in exchange for a service for a period of less than six months. I admittedly know precious little about HOA law, but one thing I do know is it is a breach of their duties to selectively enforce. The Board cannot arbitrarily enforce some covenants and not others. Nor can they arbitrarily enforce the same covenant differently against one owner and another. So how are they going to ignore the complaint about that strange car parked all last week across from Gladys Kravitz' house when they find out it belonged to a house sitter but send a cease and desist letter to someone with a short term renter in their home without handing that STR owner the basis for a selective enforcement lawsuit?
Whatever you believe we should or shouldn’t let the HOA have control over, shouldn't we, at a minimum, demand that it be clear what they have control over? By their attorney’s own admission, these restrictions were drafted broadly “to try to encapsulate as much as possible.” He was very clear. There is no balance here to address homeowners concerns about abuse of these provisions, with the exception of begging the Board for a hardship. The restrictions are drafted to give the Board as much power as possible. Every concern we have expressed IS something the Board CAN do under these restrictions, per their attorney. They and their attorney are telling us we should just trust that they won’t.
I think the most poignant, touching moment of the evening was listening to Joyce Klimek’s statement, which the Board completely ignored. For those of you who don’t know her, Joyce is a delightful, young-spirited, dance-addicted, senior citizen who recently moved to Country Place. She is on a fixed income and is worried about being able to remain in her home for the long term given the rising taxes, increased HOA dues, and escalating costs of living. She thought she found a possible solution in Silvernest, a service that matches Senior Citizens who own homes with those who do not so they can share financial burdens, chores, and companionship. Remember, Golden Girls? AARP recently ran an article about this growing movement. Sadly, if these restrictions are passed, there will be no Golden Girls living in our Country Place, as such arrangements must be entered into legally. Per the Board, if these restrictions are passed, owners are allowed to have roommates, but they are not allowed to legally protect themselves by executing a lease with a roommate. So, this preemptive effort to potentially address issues that might happen from future short term rentals will cut off the options of an actual, real-life issue many neighbors like Joyce are facing right now. I dare say we have more elderly neighbors worried about keeping their homes on their fixed incomes than all the STR issues we could ever have in the next 10 years. I’m not saying we shouldn’t consider banning STRs. But couldn’t we ask the Board and their attorney to do it in a way that doesn’t also hurt neighbors like Joyce? I guarantee you it is possible to draft a restriction that does just that. Why won’t they?
Rusty had assured us during an ACPA Open House that he was going to keep the presentations as short as possible to leave a good portion of the meeting to be dedicated to the Q&A session, which would likely focus on the PDRs. Given the Q&A was abruptly cut off after approximately 25 minutes, despite heckles from the audience, so that we could then watch a 10 minute feel-good slide show, that didn’t seem to be the case to many of us. I love that we have a great staff and believe we should take time to know and honor them, but perhaps we could have picked up the pace just a bit during this portion of the meeting and others so that homeowners had more time to discuss an issue as important as sacrificing their property rights. Or maybe we could have started the meeting earlier to permit some extra time. Or maybe they just don’t want to hear what a poor job they did aligning this community for a common goal. My bad, the majority of this community. Mr. Harrison has made it abundantly clear that you can’t please everyone. I think most of us know the next line of that song.
The saddest part of all of this is that a consensus could likely have been found, could still be found, if that is what the Board truly wanted to do. If only our Board saw all those people who showed up Tuesday to voice their opinion as having a valid contribution to the discussion and actually wanted to hear what they had to say instead of dismissing it as emotional rancor. If only they had asked us first, all of us, as a neighborhood, what we wanted instead of deciding what was best for us. If only they had managed to implement an email communication system nearly 20 years into the new millennium to better communicate with everyone. If only they rallied us together through a genuine desire to figure out just where we share common ground. If only they engaged us instead of whining about when or how or whether we engage. I’ve never met Rich Davis, but I’d be willing to bet he might have helped raise donations so that the Board could consider a line-item vote. Of course, that vote “incentive” was more than enough to pay for a line item voting tabulator application. I bet lots of people in the audience Tuesday night who took time to show up would have taken time to foster a discussion and solutions. I can tell you now, ACPA would have been happy to canvas the neighborhood to collect email addresses and ask homeowners what they wanted so that the proposed restrictions could reflect the desires of the many instead of the fears of a few. There are so many ways to find solutions when we respect and make room for one another, when we appreciate the contributions each person is able to give, whatever they may be. Many hands make light work. If only they had believed in us. If only they would try to believe in us now. They say it is too late – that it simply isn’t possible to find out what the community wants, redraft, and get votes in by the end of the year. Is it? Is it really?
Oh, by the way, for those of you who are hoping to win the No-Strangers-in-the-‘Hood Lotto, they postponed the drawing until September. Maybe now they will take the contest sign down that has far exceeded the 3-day maximum posting provided for in the Rules.