The MULHALL's July 14th Email to the Board

From: Jack Mulhall <montereyjack320@gmail.com>
Date: Sun, Jul 14, 2013 at 11:14 PM
Subject: Fwd: Proposed Rule Changes
To: montereyopenforum@gmail.com, Bob Amens <Bnlamens1@cs.com>, Dana Brown <dana@albertmgt.com>, Dick Wallace <rw9928@yahoo.com>, Ed Scott <ed92260@yahoo.com>, Greg Haugen <greghaugen@aol.com>, Mary Reichley <reichley@earthlink.net>, Patrick Bradley <pbinthedesert@yahoo.com>, Sue Dudek <desertdudeks@dc.rr.com>

To: Monterey Open Forum, Monterey Homeowners and Monterey Association Board

From: Jack & Lois Mulhall

Subject: Monterey Assoc. Board of Directors (BOD) Re: Proposed Rule Changes

First off we did not receive an e-mail notice of these Proposed Rule Changes, nor did we receive notice

of the recent newsletter (which made no mention of Proposed Rule Changes) although we did receive

the Memorial Day notice and last Thursday’s notice of the July 18^th BOD meeting. We mention this

only in regard to others who have indicated that they also did not receive notice of the rule changes. It 

brings into question how many homeowners did not receive the Rule Changes and how reliable is this 

system of e-mail notification?

These Board Proposed Rule Changes have little direct bearing on Lois & me. However, we oppose these 

changes as being totally arbitrary by the Board and overall will have a negative impact on our community 

as well as resale values. (What would prospective condo buyers think if they had an opportunity to read 

these Proposed Rule Changes before buying? We doubt they would have a favorable impression.)

Rather than address each Rule that we oppose, Lois & I are in full agreement with both e-mails Kay Van 

Zant sent to the Board (Well Done Kay). We particularly endorse her excellent recommendations and 

strongly propose the Board adopt them.

The following addresses the Board’s lack of a mandate to change rules or create new rules, create new 

projects, the process of Proposed Rule Changes and what options homeowners have to oppose the 

Board’s actions.

THE BOARD HAS NO MADATE FOR THESE RULE CHANGES: 

        We were informed of the Proposed Rule Changes by Judy Saccente’s choice to make public her opposition comments to the Board. From reading the Proposed Rule Changes it is readily evident why Judy and many others could believe that the Plants Height Restrictions applied to trees as well as plants. Homeowners should not have to plow through the  whole document to find some the Rule that says it does not apply to trees.

The major point to be made here is the Board very well could have applied the height restrictions to trees as it did to all plants and very well may do so in the future. Election or appointment to the Board is not a license to make whatever changes any four members of the feels it wants. The BOD has no mandate for any these Rules Changes without the prior approval/support of the homeowners.

There has not been nor is there now a ground swell of homeowner demand/requests that:

• Plants be limited to wall height or limited to 48” between patios. Quite the opposite,  
• or that homeowners should be prohibited from walking on the Golf/Pedestrian Path (a rule which would be illegal even if most wanted it)
•  or that we have such “draconian” patio color restrictions; what’s wrong with desert  bougainvillea red, desert orange, blue, purple or any of the plants and flower colors  that grow here in the “Monterey Desert”.

 No one voted for any of these directors to:

• come up with these rules
• or to change the condo paint colors,
• or to re-landscape the medians
• or to backdoor Desert Landscaping with river rock.

If put to a vote how many of these Board actions whether well intended or not, would pass voter 

scrutiny. When Desert Landscaping was put to homeowner vote it was rejected by the homeowners 

The Board has learned well from their Desert Landscape fiasco; that is in the future you don’t put new 

projects up for  a vote and risk rejection as happen in the 2005 Dessert Landscaping ballot (the Board 

spent over $60,000 on desert landscaping and probably as much to remove it when the homeowners 

voted it down.)  Having learned from its mistake the Board now puts new projects out for comment and 

then does whatever the Board wants. Sees process below.

This is not to say any of the Board projects are without merit, many are.  It’s simply a matter of who 

decides if the Condo colors or anything else is changed, the Board or the homeowners? 

Taking a survey on condo paint color schemes and receiving 100 responses none of which approved the 

current alternating light and dark colors because this option was never a choice on the survey, is not 

a Board mandate for change. Even if all 100 homeowners and the Board preferred some new color change, 

it still is not a mandate. 

In this community a mandate for a major change (or unbudgeted major expense) requires the minimum 

approval vote of a majority of a quorum of the homeowners (203 homeowners). As mentioned by someone 

on the Monterey Open Forum blog; the Board should not undertake any major project that makes a 

significant change to our community without at least the above minimum approval/support of the community. 

203 homeowners approval is a pretty low approval threshold.

HOW THE PROCESS WORKS: 

The Board at any time as it has now, can come up with Rule Changes for whatever 

reason or for no reason at all.  Then by law:

 "the board must "provide written notice of a proposed rule change to the members at 

least 30 days before making the rule change." The notice must include the text of the 

proposed rule change and a description of its purpose and effect.”

 According to the statute a rule is only enforceable if it is reasonable. Putting the Board’s Proposed Rule 

 Changes to the reasonable test we find the following:

Reasonable:

•  Limiting colors to a few dull unimaginative selections is not reasonable
•  Cutting all plants to wall height is not reasonable
•  Prohibiting walking on the Golf/Pedestrian Path is not reasonable
•  Allowing the Board president to extend his patio three or more feet into the common area for his own boulder/flower garden and then after the fact create a rule  that the HOA (not the owner) will maintain  it. (We believe the statute/CC&R require homeowner approval before a homeowner can use that amount of common area for his own purpose).  
• Changing the height limit of Rose bushes (that are maintained by the homeowner) from 5 to 4 feet is not reasonable.
• And so on

What happens to the comments received from the Homeowners? As mentioned by one homeowner the 

        Board operates “in a shroud of secrecy”. The Board is under no legal obligation to do anything with the 

        comments. It merely has to go through the motion of soliciting homeowner comments. We would hope 

        that comments would in fact influence the Board one way or the other but it’s entirely up to the Board. 

        A homeowner comment is not a vote

The Board is free to ignore homeowner comments or to say that receiving 40 opposing comments or 

        even the 72 votes against the Plant Height Limits Rule with no votes in favor as identified on the 

        Monterey Open Forum, is too small a sample to change their position even though they cannot present 

        anything to support a mandate to make the changes.  We have no way of knowing how many others who 

        may have commented in opposition or in flavor of the Proposed Rule Changes. Only small percentage of

        homeowners are aware of the Monterey Open Forum. The Board is free to approve the Proposed Rule 

        Changes regardless of a majority opposition.

HOMEOWNER OPTIONS:

If the Board disregards homeowner opposition and approves the Proposed Rule Changes on July 18^th  the homeowners have by law an option to veto the Proposed Rule Changes. The process is for 5% of  the homeowners (a total of 62) sign a simple petition to have a special meeting (election) to veto (vote down) the Proposed Rule Changes.  These must be delivered to HOA within 30 days of the Board approving the Proposed Rule Changes which would be 30 days from July 18, 2013 or when published.

The Board must then schedule an election not earlier than 35 days or more 90 days. The vote must achieve a majority of a quorum which is 203 votes for the veto to be successful.

To make this option credible a number things must be done by homeowners:

• More homeowners need to make their opposition known to the Board by e-mail and can pass this info on to their neighbors. More people can let the Monterey Open Forum know they have e-mailed the Board.

• More people need to access the blog and vote on the survey issues so that the Board will know that at least a large percentage of homeowners aware of the Monterey Open Forum, oppose the Board  Proposed Rule Changes.

• To many homeowners appear to sitting on the sidelines, they need to make the commitment to actively oppose these Proposed Rule Changes. Even if you feel the Proposed Rule Changes do not directly affect you, you must agree with the principle that the Board should not make changes without the prior approval/support of a majority/quorum of the homeowners. The Board’s comment process does not achieve this.

•  Homeowners in opposition must indicate there willingness to veto approved Proposed Rule Changes, by e-mail to the Monterey Open Forum.                    
• Homeowners in opposition must indicate there willingness to volunteer to distribute and collect veto petitions. Again by e-mail to the Monterey Open Forum

•  Homeowners in opposition must indicate there willingness to volunteer to distribute information flyers  prior to any special meeting (election) when the petition is successful.   Distribution may be by e-mail, mail or distributing by hand on your street.

•  Homeowners, some dozen or so must be willing to volunteer to be inspector of election and assistants to count the returning ballots in order to avoid the $7,000 cost the Board pays the Orange County firm to count the ballots.

A successful veto won’t happen by itself, it takes a lot of effort and the 30 day time limit to submit 62 petitions 

to the association is not as easy as it may sound.

The objective of this process is to reestablish the correct relationship between the homeowners and the Board

whenever major community changes are contemplated.  The homeowners not the Board, are the ultimate 

decision makers on any major change whether it is Rules or otherwise.

Democracy is cumbersome and slow but it is the way our community is designed to work. As Winston 

Churchill stated “It has been said that democracy is the worst form of government except all the others 

that have been tried.” In our case arbitrary rule by the  Board is not an option we homeowners should 

permit.

RECOMMENDATION:  Our only addition to Kay Van Zant’s recommendations, is a procedural one to include 

           all Proposed Rule Changes and/or projects with the mandatory mailing of the Pro Forma Budget and 

           other Documents in November each year.  Each proposed change/project can be explained and a place 

           provided for the homeowner to approve/disapprove of each proposal with space provided for comments 

           on each change.  This form(s) can then be signed by the homeowner (secrecy is neither required nor 

          desired) and mailed to the association.

Alternatively the approval/disapproval process can also be accomplished on the HOA website using the 

survey capability that Board so far has chosen not to use. The votes would be tabulated by staff and 

published on the website and approved at the annual meeting in January. There would only be a marginal 

cost to process this procedure and a marginal increase in effort by the Albert management staff. Considering 

that we are paying Albert over $5,000 to maintain the website, that is to do what the pre-Albert staff did at no 

additional cost to the association, this addition workload should not be a problem.

Note: The comments made on the lack of HOA communications with the homeowners is agreed with. We 

homeowners should propose a SUNSHINE RULE CHANGE to require Board transparency, e.g. Member Form, 

Board meetings recorded and published on the website,  Videotaped and played on Channel 98, Web Surveys, 

all committee agenda and minutes reported on the website and proposed contracts reported on the website etc.

Homeowners and prospective Board members should be fully aware of all association and Board functions if 

they choose to. The capability is there but not used, but this an issue for another day.

THE OTHER OPTION:  There is always the option of doing nothing.  This is the option that most homeowners 

         take either from lack of knowledge or indifference. It is the option the Board depends on to support their 

         rationale for taking action without prior homeowner approval.

Jack & Lois Mulhall