Association Rules >> Resolutions

WHEREAS, the Virginia Property Owners' Association Act requires all Lot Owners and those entitled to occupy a Lot to comply with all provisions of the Declaration, the Bylaws and rules adopted by the Board of Directors, (the "governing documents") and provides for suspension of privileges and imposition of charges and other remedies for violations; AND

WHEREAS, Article VII, Section 1(C), of the Bylaws states that the Board of Directors (the "Board") shall exercise for the Association all powers, duties, and authority vested in or delegated to the Association and not reserved to the membership by other provisions of the Bylaws, Articles of Incorporation or the Declaration; AND

WHEREAS, for the benefit and protection of the Association and the individual Lot Owners or occupants, the Board of Directors deems it desirable to establish and operate by a procedure to assure due process in cases where there is a question of compliance by a Lot Owner or occupant with provisions of the Virginia Property Owners' Association Act or the governing documents thereby attempting to minimize the necessity of seeking action in or through a court of law; AND

WHEREAS, it is the intent of the Board of Directors to establish procedures for the Architectural Control Committee (hereinafter, the "Committee") where it must take action relative to questions of compliance by an individual with the provisions of the Virginia Property Owners' Association Act or the governing documents.

NOW, THEREFORE, BE IT RESOLVED THAT these due process procedures shall be adopted and shall replace any prior Resolutions on this topic:

Section 1. Prior to Initiation of Formal Complaint Process

Any Lot Owner or occupant or agent of the Association has the authority to request that a Lot Owner or occupant (hereinafter the respondent) cease or correct any act or omission which appears to be in violation of the governing documents. Such informal requests must be made before the formal process is initiated.

If informal requests do not result in compliance, a written complaint providing in reasonable detail the specifics of the alleged violation shall be filed with the Committee.

Section 2. Written Complaint

A. Substance of Complaint

A written complaint may be filed by any person. The complaint shall constitute a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare a defense. The complaint shall specify the specific provisions of the Virginia Property Owners' Association Act or the governing documents which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such provisions without supporting facts. The complaint must be as specific as possible as to times, dates, places, and persons involved. The complaint must be signed. In the case of disputes between Lot Owners regarding activities within the dwelling located upon the Lot, the Association will not become involved in the dispute or act on a complaint unless there are two or more complaining parties.

B. Preliminary Investigation

Upon receipt and consideration of the written complaint, the Committee may request a member of the Committee or a member of the Board to make a preliminary investigation as to the validity of the complaint and promptly report the findings. If the alleged violation has been corrected since the complaint was made, or if the complaint is for any other reason no longer valid, the Committee shall determine the appropriate disposition of the matter and respond in writing to the complainant. The Committee may make initial attempts to secure compliance through correspondence to the Owner or occupant which states the time, date, place, and nature of the violation and which sets forth that the violation must be corrected within the time prescribed, which in no event, shall be less than fifteen (15) days from the date the notice is delivered. Copies of such correspondence shall be maintained in the Association files, and a copy may be sent to Legal Counsel for the Association. If preliminary investigation indicates the need for further action, the Committee may proceed as appropriate with the steps set forth below.

Section 3. Service of Complaint

Upon the filing of the complaint and completion of any appropriate preliminary investigation, the Committee shall serve a copy thereof on the respondent by either of the following means:

(1) Personal delivery with receipt; or

(2) By certified mail, return receipt requested, and also by regular mail addressed to respondent, at the address appearing on the books of the Association. Service by mailing shall be deemed effective upon deposit in a regular depository of the United States mail.

No order adversely affecting the rights of the respondent may be made in any case, unless the respondent shall have been served as provided herein, although the failure or refusal of the respondent to claim the certified mail notice shall not prevent the Committee from acting on any matter.

Section 4. Notice of Hearing

Along with service of the complaint, the Committee shall include a Notice of Hearing, as provided herein, to all parties at least fourteen (14) days prior to the hearing. The Notice of Hearing sent to the respondent shall be substantially in the following form, but may include other information:

"You are hereby notified that a hearing will be held before the Architectural Control Committee at ______ on the ______ day of, 199_, at the hour of ____ upon the charges made in the complaint served upon you. You may be present at the hearing, may, but need not, be represented by counsel, may present any relevant evidence, and you will be given full opportunity to cross-examine all witnesses testifying against you."

If any of the parties can show, prior to the scheduled hearing, good cause as to why they cannot attend the hearing on the set day and indicate times and state dates on which they would be available, the Committee may reset the time and date of hearing and promptly transmit notice of the new hearing date. Mailing notice of the new hearing date and time shall be sufficient.

Section 5. Cease and Desist Orders

The Committee may, at its own discretion, issue a Cease and Desist Order along with the complaint and Notice of Hearing, to be substantially in the following form:

"The Architectural Control Committee has received the attached complaint. The Architectural Control Committee hereby requests that you CEASE AND DESIST such acts or actions until such time, if any, as a ruling of the Architectural Control Committee or court of law permits."

Section 6. Amended or Supplemental Complaints

At any time prior to the hearing date, the Committee may file or permit the filing of an Amended or Supplemental Complaint. All parties shall be notified thereof in the manner herein provided. If the Amended or Supplemental Complaint presents new charges, the Committee shall afford the respondent a reasonable opportunity to prepare a defense thereto.

Section 7. Constraints on the Committee

It shall be incumbent upon each member of the Committee to make a determination as to whether he is able to function in a disinterested and objective manner in consideration of the case before the Committee. Any member incapable of such objective consideration of the case shall disclose such to the Committee and remove himself from the proceedings and have it so recorded in the minutes. The Chairman shall also have the authority to remove a member of the Committee from a hearing with the concurrence of the Committee.

In any event, the respondent may challenge any member of the Committee for cause, where a fair and impartial hearing cannot be afforded, at any time prior to the taking of evidence and testimony at the hearing. In the event of such a challenge, the Committee shall determine the sufficiency of the challenge. If the Committee cannot meet to consider the challenge prior to the scheduled hearing, the hearing shall be postponed until after such a determination is made by the Committee. All decisions of the Committee in this regard shall be final.

Section 8. Hearing

A. Whenever the Committee has commenced to hear a matter and a member of the Committee is forced to withdraw prior to a final determination, the remaining members shall continue to hear the case. Oral evidence shall be taken only on oath or affirmation administered by an officer or official of the Association.

B. Each party shall have these rights:

(1) To call and examine witnesses;
(2) To introduce exhibits;
(3) To cross-examine opposing witnesses; and
(4) To rebut the evidence against him.

Even if respondent does not testify in his own behalf, he may still be called and examined as if under cross-examination.

C. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Generally, any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.

D. Neither the complainant nor the respondent must be in attendance at the hearing, but the Committee shall be entitled to make inferences from the unexplained absence of any party. At the request of the complainant or respondent, the hearing shall be conducted in private.

E. The Committee shall select a person to serve as hearing officer and preside over the hearing. Such hearing officer need not be a Lot Owner or a member of the Committee. At the beginning of the hearing, the hearing officer shall explain the rules and procedures by which the hearing is to be conducted. Generally, the parties are each entitled to make an opening statement, starting with the complainant. Then, each party is entitled to produce evidence, witnesses, and testimony and to cross-examine the witnesses and opposing party. Then, each party is entitled to make a closing statement. Any party may waive the rights to exercise any part of this process, and the Committee is entitled to exercise its discretion as to the specific manner in which the hearing will be conducted, so long as the above rights are protected.

F. After all documentary evidence and testimony has been presented to the Committee, the Committee shall vote on the issue. Agreement of a majority of the participating members of the Committee shall be required for a decision. The decision shall be made as promptly as possible after the hearing and a written ruling shall be issued by the Committee to the parties. A summary of the decision, excluding names, may be included in the newsletter.

Section 9. Suspension of Privileges and Assessment of Charges

A. Disciplinary action imposed by the Committee may include suspending or conditioning the respondent's and his family's or tenant's right to use facilities or non-essential services offered by the Association for non payment of assessments or a violation of the rules to the extent that access to the Lot through the common area is not precluded. Any such suspension shall be for a period of not more than sixty (60) days.

B. The Committee may also assess charges against Lot Owners and occupants, after notice and hearing as provided for in this Resolution, for violations. The charge shall not exceed Ten Dollars ($10.00) per day for a continuing offense or Fifty Dollars ($50.00) for a single offense. Any charges made pursuant to this Section shall be collectible as an assessment.

C. Such other sanctions or corrective action may be imposed or required in the discretion of the Committee, subject to limitations of law and as contained in the governing documents.

Section 1. Rights of Petitioning Lot Owners

Any Lot Owner may submit in writing, within ten (10) days following issuance of the Committee's decision, a request that the Committee reconsider its decision, if new or additional information might clarify the matter. The Committee may determine, based upon information submitted with the request for reconsideration, whether to reopen the matter and shall respond to the parties and, if appropriate, schedule a new hearing to be noticed and held in accordance with the provisions of this Resolution, including the rendering of a final decision.

Section 2. Appeal to the Board of Directors

Decisions of the Committee may be appealed to the Board in accordance with the following sections. If a Lot Owner wishes to appeal the decision of the Committee the Lot Owner must notify the Board in writing within ten (10) days of the Committee's final decision.

Section 3. Notice of Hearing

Notice of hearing shall be provided as if for the original complaint except that it will be served by the Board of Directors.

Section 4. Procedures

A. It shall be incumbent upon each member of the Board of Directors to make a determination as to whether he is able to function in a disinterested and objective manner in consideration of the appeal before the Board of Directors. Any member incapable of such objective consideration of the appeal shall disclose such to the Board of Directors and remove himself from the proceedings and have it so recorded in the minutes. The remaining members shall hear the appeal without respect to quorum.

In any event, the parties to the appeal may challenge any member of the Board of Directors for cause, where a fair and impartial hearing cannot be afforded, at any time prior to the taking of evidence and testimony at the hearing. The Board of Directors shall meet to determine the sufficiency of the challenge. If a majority of the Board of Directors sustains the challenge, the remaining members shall hear the appeal without respect to quorum.

B. The Board of Directors may decide to hear arguments from the parties on the appeal or allow the Committee decision to stand.

C. If any appeal is based upon substantially new information pertaining to the original Committee case or substantially new evidence pertaining to same, it shall not be heard by the Board of Directors, but shall be returned to the Committee for reconsideration.

D. The Board of Directors shall render a decision, through a vote of the majority of the Board of Directors hearing the appeal and present at such hearing, within a reasonable time. That decision shall be the final word within the Association on the matter.

Section 5. Effect of Decision

The Board of Directors may uphold the Committee's decision in its entirety, may amend such decision (except that where the Committee decision includes a penalty, the Board in no event shall impose more stringent disciplinary action than that imposed by the Committee), or may overturn such decision.

Section 6. Interpretation

This Resolution is intended to serve as a protection to Lot Owners and residents to ensure that their rights are protected and to serve as a guideline for the Board of Directors in enforcing the governing documents.

The Board of Directors may determine the specific manner in which the provisions of this Resolution are to be implemented, provided that due process is afforded.

Any inadvertent omission or failure to conduct any proceeding in exact conformity with this Resolution shall not invalidate the results of such proceeding, so long as a prudent and reasonable attempt has been made to ensure due process according to the general steps set forth in this Resolution.

Section 7. Legal Action

Notwithstanding any provision of this Resolution, the Association may initiate legal action at any time without following the procedures set forth herein, if, in the judgment of the Board of Directors, the interests of the Association so require.

ALDEN GLEN COMMUNITY ASSOCIATION

By:
________________________
President, Board of Directors

I hereby certify that the foregoing Resolution was duly adopted at a regular meeting of the Board of Directors of the Alden Glen Community Association, this ____ day of ____, 1995.
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Secretary, Board of Directors