R2R Meeting 17 ppt

SoCal 2007 Wildfire Roadmap to Recovery: Interfacing with an HOA after a total loss; M eeting 17: July 17, 2008 Rancho Bernardo Community Presbyterian Church www.unitedpolicyholders.org Karen Reimus [email_address]

Mark your calendar for upcoming Roadmap to Recovery meetings… Thursday, July 31: Integrating fire-resistant technology/techniques into your rebuild August - Insurance interest group meetings only Thursday, August 14 Thursday, August 28 Thursday, September 11: Pre-1 st Year Fire Anniversary Legal Issues

Additional Support Resources from United Policyholders to Help You Navigate the Catastrophic Property Loss Recovery Process: Disaster Recovery Mentor Program Previous catastrophic loss survivors are available to provide emotional support and “real-life” insight about recovering from a catastrophic property loss. For more information, e-mail Karen Reimus at karen@unitedpolicyholders.org ; “ Survivor to Survivor” Listserve A restricted listserve for ‘07 Firestorm Survivors only. It provides a convenient means of sharing valuable information with others who are similarly situated. For more information, e-mail Karen Reimus at karen@unitedpolicyholders.org ; “ Ask An Expert” On-line Forum A restricted on-line forum where 2007 Firestorm Survivors can easily obtain answers to disaster recovery-related questions from experts in the field. Forum participants can direct questions to: 1) an attorney, 2) a claims handling professional, or 3) a previous catastrophic loss survivor. For more information, e-mail Emily Cabril at emily@unitedpolicyholders.org.

Videos of Roadmap to Recovery Meetings Now Available… Previous Rancho Bernardo Roadmap to Recovery meetings may now be viewed as videos at the United Policyholders website To view previous meetings, go to www.unitedpolicyholders.org . On the homepage, at the top left corner. It says, "'Roadmap to Recovery' Watch and listen to live videos". Click on that verbage and you will be directed to a page that lists the previous Roadmap to Recovery meetings From there, simply click on the meeting date/topic that you want to view. Download time for the videos varies depending on computer and internet connection

Going home one step at a time Celebrating along the Road Home: Ideas and Encouragement for 2007 Fire Survivors from Cedar Fire Survivors, United Policyholders, and RBCPC NEW PAMPHLET Jan Rasmussen, RB United will distribute

The Fine Print… The information provided in this program is intended for general educational purposes only. It should not be construed as legal advice. The speakers at today’s program are volunteering their time as educators. Neither United Policyholders nor the Rancho Bernardo Community Presbyterian Church endorse or warrant the quality or services of any volunteer speakers.

Roadmap to Recovery Series: Successfully Navigating Your Homeowners Association’s Architectural Review Process

Speaker: Luis E. Ventura, Esq. LAW OFFICE OF LUIS E. VENTURA 4190 Bonita Road, Suite 206 Bonita, CA 91902 Phone: (619) 479-7333 Fax: (619) 479-7322 Email: [email_address]

Speaker Profile: Luis E. Ventura was admitted to practice law in California in 1995 and concentrates his practice in homeowner association law throughout San Diego County and beyond. Luis handles issues of homeowner association governance, architectural review, litigation, monthly assessment collection, transactional matters, etc. He also handles general civil litigation matters including malicious prosecution and defamation related cases, among others. Luis is past chair of the San Diego County Bar Association’s Construction Law section and has served on the San Diego County Bar Association’s Legal Ethics Committee since 2002. He also reviews law firm promotional and advertising materials (brochures, web pages, etc.) for ethical concerns.

I. The Bad News: a) Almost all associations have a Declaration of Conditions, Covenants and Restrictions (CC&Rs) that provide for architectural control/review, i.e., limiting your right to have your castle look the way you want. b) A small group of people—the Architectural Review Committee (ARC)—who do not own your home/lot can use their subjective views, in addition to objective requirements, in determining whether to approval/disapprove your plans. (See, e.g., Clark v. Rancho Santa Fe Assn . (1989) 216 Cal.App.3d 606.); c) Courts will not overturn an ARC’s denial of architectural requests unless there has been a patent abuse of discretion, i.e., only if the ARC has acted arbitrarily, capriciously, or in bad faith. ( Dolan-King v. Rancho Santa Fe Assn . (2000) 81 Cal.App.4th 965, p.979.) Courts are to generally defer to the ARC’s decisions and are not to substitute their own judgment in place of the ARC’s. ( Ibid .) d) Most CC&Rs, even in single family detached neighborhoods, do not expressly deal with complete losses and the rebuilding of an entire home. e) Complete rebuild provides greater likelihood of disagreements.

II. The Good News: a) Despite what Michael Turko would you have you believe, the vast majority of associations are not out to stick it to the owners. b) With knowledge of the process, a “let’s work together” attitude, and an understanding of the ARC’s point of view, you should be able to navigate the review process successfully. III. The Steps: a) Educating yourself: read all architectural provisions in the CC&Rs and in any architectural guidelines line by line. b) Conceptual Plan: Some CC&Rs require a review of conceptual plans before the review of detailed plans. Even is no conceptual review required, first submit such plans weeks ahead of time and ask to meet with ARC to discuss any preliminary issues/concerns/thoughts. i) let ARC know you are nice people; have the better communicator be the point of contact; ii) that you want to follow the rules; iii) that you understand they might have some things they are concerned about;

c) Plan Submission: i) Detailed submission with all relevant information and correct number of copies; use the association forms in architectural guidelines; ii) personally deliver plans; alternatively, call to confirm receipt and to ask whether any questions/comments or additional information you can provide; d) The Decision: i) What does ARC typically consider? CC&Rs will often set forth: color, finishes, size, location, conformity with rest of neighborhood**, etc. ii) Consideration of views permissible? Some CC&Rs expressly allow for this. Law generally does not provide any protection for views; iii) Was decision timely made? Most CC&Rs have automatic approval provisions if ARC fails to deny within 30/45 days. Newer CC&Rs (last 8 years or so) have automatic denial provisions; iv) Decision must be given in writing including explanation why submission was disapproved and description of procedure for reconsideration by Board (section 1378(a)(4)).

e) Appeal to the Board: i) Right to appeal set forth in CC&Rs? ii) Right to appeal in open meeting of Board now provided by statute (section 1378(a)(5)); no such right if original decision made by Board or by body (e.g., ARC) with same membership as Board if decision was made in open meeting. f) Use of Internal/Informal Dispute Resolution Procedure (IDR) (section 1363.810 et seq.) i) all associations must have written IDR procedures; if none, default statutory procedure applies (section 1363.840); ii) at minimum, IDR must provide: A) request to use IDR to be in writing; B) if owner requests, association must accept; if association requests, owner has option of declining; C) prompt deadlines, including time to respond to request; D) any resolution made in IDR binds association so long as not in conflict with the law or the governing documents; E) owner not to be charged a fee.

IV. Common Owner Complaints: a) Large Deposit/Fee for Plan Review: i) How to address? A) Is this authorized by CC&Rs or architectural guidelines? B) Is it a written rule? 1) all “operating rules” and changes thereto (Civil Code section 1357.100(a) and (b)) must be in writing and must be “reasonable,” in addition to other requirements (section 1357.110(a-e)); C) Was amount properly established by following procedure for adoption of rules? Following applies to rule changes commenced on or after January 1, 2004; not affect anything that predates this: 1) applies to “[u]se of a separate interest [i.e., your home/lot], including any aesthetic or architectural standards that govern alteration of a separate interest” (section 1357.120(a)(2)) and to “ [a]ny procedures for reviewing and approving or disapproving a proposed physical change to a member's separate interest or to the common area.” (Section 1357.120(a)(6));

2) did Board provide owners with at least 30 days written notice of rule adoption/change along with actual text of rule and explanation of its effect? (Section 1357.130(a-e)); 3) Reversal of rule by owners? Takes a petition signed by 5% of homes to hold a vote of all membership on whether to veto rule. If majority of quorum votes to revoke rule, it is revoked and Board may not readopt it for at least one year thereafter. (Section 1357.140(a-h).) D) Will the Board/ARC waive the fee or allow it to be paid over time? 1) Does the Board/ARC have authority to do so? 2) If not, will it seek amendment of CC&Rs to give it such authority or change rule/guideline re fee? 3) Unite affected owners and push for CC&R amendment to prohibit the charging of such a fee? E) Is your homeowners insurance carrier obligated to pay for the fee in that it is necessary for rebuilding, just like a permit fee?

b) Imposing Strict Building Guidelines: i) Height limitations, minimum size, etc. ii) How to address? A) All of the same procedures regarding architectural rules addressed above apply here as well; B) Association must allow Fire Retardant Roof Coverings for homes located in a “very high fire severity zone,” as designated by the Director of Forestry and Fire Protection or by a local agency. Cannot require the installation/repair of roof that would violate Health and Safety Code section 13132.7 which allows for use of roof material that is “at least class B as defined in the Uniform Building Code, as adopted and amended by the State Building Standards Commission.” (Civil Code section 1353.7(a-b).) C) Guidelines cannot prohibit or have effect of prohibiting use of low water-using plants as a group. (Section 1353.8.)

V. …and When All Else Fails…Litigation: a) A bad resolution is often better than a good lawsuit. b) Pre-litigation offer of alternative dispute resolution (ADR): with minor exceptions, prior to filing suit for enforcing CC&Rs, guidelines, etc., one must offer ADR; normally mediation is offered, but arbitration can also be used.

Roadmap to Recovery: July 17 th , 2008 Interfacing with an HOA after a total loss David R Shalinsky, PhD [email_address]

Background in Whispering Ridge Home Owners Association Homeowner 1994 – present Member, Board of Directors 1996 – 2005 Member and Chair, Architectural Committee 1999 – 2005 Cedar Fire Rebuild 2003 - 2005

Rebuilding after Fire Disaster is an Unusual Time Loss of control Emotions are raw Finances in upheaval Insurance blues Short fuses You know the drill…..

HOA Governance CC&Rs Covenants, Conditions & Restrictions Board of Directors Rules & Regulations Architectural Committee Architectural Review Other Committees Landscape, Pool, etc

Understand Jurisdiction Use of Land (buildable pad)  City (PRD) Approval of Building Permit  City (PRD) Esthetics, Look of home  Arch Committee Exterior landscaping and hardscaping included Key concept = harmonious with neighborhood

Purpose … Rules and Regulations

With respect to private homes, HOAs are responsible for esthetics Responsible to maintain common property and open space ‘for the common good’

Purpose of a Homeowner Association Prevent this

Purpose of a Homeowner Association Promote this

Some Assumptions You signed on…. I signed on Your HOA is in uncharted waters Welcome to the club Volunteers are generally civic-minded Common commitment to restoration

CC&Rs  Architectural Control The Architectural Committee shall have the right and duty to promulgate reasonable standards on which to examine any request made pursuant to this Article, in order to ensure that the proposed plans conform harmoniously to the exterior design and existing materials of the Buildings in the Project .

Rules & Regs Guidance on Construction

WRHOA Policy after Cedar Fire Kept the same Arch Review process Each HO was responsible for own application Architectural application Architectural review & decision Right to appeal to Board Goal to maintain similar nature of homes hips and gables roofing “wood-like appearance” general colors (earthtones) Understood & embraced rebuilding of new custom neighborhoods Flexibility on: Stucco, Stone, Siding

WRHOA Policy after Cedar Fire Waived architectural review fees Sought and procurred pro bono architects Expedited review & personal service All members of Arch Committee lost home Met weekly for 7 months, biweekly thereafter Courier of plans to and fro Personal interactions w/ Building Dept Expedited approval after full review/comments

Examples of ‘Harmony’ Goal was to build homes with similar esthetic features to original Working with custom, merchant builder and pro bono architects

Examples of unique homes Homes with multiple or unique features Working with custom, merchant builder and pro bono architects

New features can be harmonious

Specific Examples around Home Color Mis-communication: Change in Roofing color led to changed color of house Lack of communication: Color of house Good communication: Color of house

What could have gone better There is no blueprint for rebuilding after disaster CC&Rs do not address specific esthetic features Architectural Committee approved a few unique homes based on lack of experience and/or intent of a few homeowners A few homeowners didn’t play by the rules City and HOA didn’t set up an up front policy on the use of the buildable pad Many homes have too little yard space Landscaping issues

Landscaping & Hardscaping Job isn’t finished until the paperwork is done!

What went well >97% (163/168) homes achieved desired harmonious results  SUBJECTIVE Most homeowners rebuilt homes recognized as beautiful or tasteful  SUBJECTIVE Most homes rebuilt by 2 yrs Lovely custom neighborhood arose Great sense of satisfaction among Architectural Committee members & community

Inside Scoop: Architectural Committees & Boards turn over  inconsistency over time An example of almost any architectural feature may exist in your HOA Architectural features may or may not have been approved - May have been,May have been installed without approval, May be a mistake Regardless, does it pass the “harmony test?”  SUBJECTIVE

Summary You’re a full member of the HOA  exists to serve you Work with your Arch Committee in good faith “ Harmonious construction” is subjective and not defined by CC&Rs Rules and Regulations evolve over time You should not have to rebuild a home with dated designs, materials or features You should be able to add designs, materials, and features within the framework of ‘harmony’ Your HOA must follow the CC&Rs and you therefore need to know yours

Summary Advocate on your behalf Appeal Arch Committee decisions to the Board of Directors Avail yourself of pro bono legal advice if necessary HOA doesn’t want to be liable for wrong doing

Best Wishes [email_address] 858-705-3273 (cell)

CDI Consumer Hotline: 800-927-HELP

Break Out Sessions State Farm : Dormer West Farmers : Skylight West Allstate : Upper Courtside East USAA: Small room off lobby

R2R Meeting 17 ppt

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R2R Meeting 17 ppt