LAKE LINGANORE ASSOCIATION, INC.
DUE PROCESS ENFORCEMENT PROCEDURES
FOR ADDRESSING
ALLEGED
VIOLATIONS OF THE GOVERNING DOCUMENTS
WHEREAS, Article IV, Section 3 of the Declaration of
Conditions, Covenants, Restrictions, Easements and Charges (“Declaration”) governing the Lake Linganore
Association, Inc. (“Association”) anticipates that the Association may adopt
and publish Rules and Regulations and Article IV, Section 11 of the Bylaws for
the Association, as amended, provides that the Board of Directors has both the
power and duty to establish and amend rules of procedure for the manner in
which cases of alleged violations of the governing documents are processed,
which rules of procedure shall be consistent with traditional customs of due
process; and
WHEREAS, Article IV, Section 11 of the Bylaws, as amended,
further provides that the Board of Directors shall be authorized to enforce
judgments rendered regarding violations of the governing documents of the
Association through reasonable and appropriate punitive measures which may
include the assessment of financial damages caused by the violation, the
assessment of fines, the suspension of rights to use the Common Property and
facilities of the Association and/or the initiation of legal action at law or
in equity; and
WHEREAS, Article IV, Section 11 of the Bylaws, as amended,
further provides that financial judgments rendered by the Board of Directors
shall be collected as assessments as provided in Article V of the Declaration; and
WHEREAS, the Board of Directors has determined that procedures
for addressing the enforcement of violations of the governing documents of the
Association are necessary and appropriate at this time.
NOW, THEREFORE, BE IT
RESOLVED THAT: The Board of Directors hereby adopts this
Due Process Enforcement Procedures for Addressing Alleged Violations of the
governing documents. These new
Procedures shall supercede any and all conflicting or alternative previous procedures
that may have been adopted and shall be effective from the date hereof.
I.
ENFORCEMENT PROCEDURES
A.
Identification of Potential Violation. It shall be the responsibility of the Board
of Directors, the General Manager of the Association, or the Compliance
Administrator (an employee of the Association that is responsible for the
review and oversight of the compliance by Owners with the governing documents
of the Association) to identify potential violations of the governing documents
of the Association and/or to receive information from other sources which
identify potential violations of the governing documents. There are numerous methods in which
potential violations of the governing documents may be identified and brought
to the attention of the Board of Directors and/or General Manager for action. Such methods include the following:
1.
The Board of Directors or the members thereof, through visual
inspections of the Association property or through any other means, may observe
or otherwise identify potential violations of the governing documents.
2.
The General Manager and/or the Compliance Administrator may
bring to the attention of the Board of Directors potential violations of the
governing documents that have been observed or otherwise identified within the
Association.
3.
The Board of Directors or the President of the Association may
bring to the attention of the Board of Directors potential violations of the
governing documents that have been observed or otherwise identified within the
Association.
4.
Any Owner(s) within the Association may submit a complaint to
the General Manager, the Compliance Administrator, or the Board of Directors
regarding a potential violation of the governing documents within the
Association.
B.
Determination of Alleged Violation. Upon identification of a potential violation
of the governing documents, the matter shall be referred to the Compliance
Administrator to determine if the alleged action or inaction identified may
amount to a violation of the governing documents. If deemed necessary or appropriate, the Compliance Administrator
may make a preliminary investigation to determine if a violation is believed to
exist or may have occurred. The Board
of Directors or the General Manager shall also be authorized to direct the
Compliance Administrator, or if deemed necessary the General Manager, to make
such preliminary investigation. If the
Compliance Administrator, the General Manager or the Board of Directors
determines that a violation may exist or may have occurred, the enforcement
procedures outlined herein shall be pursued.
If there is a determination that a violation does not exist or did not
occur, the Compliance Administrator shall notify the party who submitted the
complaint of such determination.
C.
Notification of Alleged Violation of the Governing
Documents. If a determination is
made that a violation exists or occurred, a Notice of Alleged Violation shall
be sent to the Owner(s) by the Compliance Administrator. The following requirements shall apply to
the Notice of Alleged Violation:
1.
If the alleged violation is of a continuing nature (the
alleged violation and/or the alleged violating condition continues
uninterrupted such as a physical change to a lot), the Notice of Alleged
Violation shall state the specific violation alleged, the provision of the
governing documents which has been violated and the specific time period within
which the violation must be corrected without further enforcement action being
taken by the Association. The time
period provided shall be determined by the Compliance Administrator unless
directed by the Board of Directors and shall be based upon a reasonable
assessment of the amount of time that may be necessary to correct the
violation. The Notice of Alleged
Violation shall further advise that failure to correct the violation within the
time period allowed may subject the Owner, after further notice and opportunity
for Hearing, to potential penalties or sanctions, including but not limited to,
the assessment of charges and/or fines or the suspension of rights to use the
Common Property and facilities, if a violation is found to exist.
2.
If the alleged violation is of a non-continuing nature (the
alleged violation was a one-time occurrence and while it may recur it does not
continue uninterrupted), the Notice of Alleged Violation shall state the date,
time and place of the specific violation alleged and the provision of the
governing documents which has been violated.
After notice and opportunity for Hearing, penalties may be imposed by
the Board of Directors for this violation or the Board may determine that if
another violation of similar nature recurs within the next twelve (12) months,
after notice and opportunity for Hearing, various penalties or sanctions,
including but not limited to, the assessment of charges and/or fines or the
suspension of rights to use the Common Property and facilities, may be imposed.
3.
The Notice of Alleged Violation shall be sent to the Owner(s)
involved in the following manner:
(i)
Certified mail return receipt requested at the address
appearing on the books of the Association; and
(ii)
Regular mail also to the address appearing on the books of the
Association.
(iii)
Failure on the part of the Owner(s) involved to pick up
certified mail or failure on the part of such Owner(s) to notify the
Association of a changed address shall be no excuse or defense.
(iv)
Copies of the Notice of Alleged Violation shall be maintained
in the Association files by the General Manager, and a copy may be sent to the
Association’s attorney at the discretion of the Board of Directors or the General
Manager.
4.
Nothing herein shall preclude the Compliance Administrator,
General Manager or the Board of Directors from sending warning notices before
proceeding with the Notice of Violation, if determined appropriate. However, warning notices shall not be
required.
D.
Notice of Opportunity for Hearing. If after receipt of the Notice of Alleged
Violation, the Owner(s) fails to comply with the required action (correction is
not implemented within the requisite time period for a continuing violation or
the Board intends to proceed with penalties for a non-continuing violation
(based upon the first Notice of Alleged Violation or based upon a second
offense within the 12 month period)), the Board of Directors shall proceed with
a second Notice to the Owner(s) outlining the intended penalty or sanction and
providing the Owner(s) with an
opportunity to request a Hearing. The
Notice of Opportunity for Hearing shall comply with the following requirements:
1.
The Notice of Opportunity for Hearing shall state the nature
of the violation and shall identify the provision(s) of the governing documents
that is alleged to have been violated and the action or inaction on the part of
the Owner(s) in response to the initial Notice, if any.
2.
The Notice of Opportunity for Hearing shall be sent to the
Owner(s) involved in the following manner:
(i)
Certified mail return receipt requested at the address
appearing on the books of the Association; and
(ii)
Regular mail also to the address appearing on the books of the
Association.
(iii)
Failure on the part of the Owner(s) to pick up certified mail
or failure on the part of such Owner(s) to notify the Association of a changed
address shall be no excuse or defense.
(iv)
The Notice of Opportunity for Hearing shall advise the
Owner(s) of the intended penalty or sanction and shall provide the Owner(s)
with an opportunity to request a Hearing on such matter, prior to the
imposition of such penalty or sanction, before the Board of Directors. The Notice shall further provide that a
request for Hearing must be submitted in writing within ten (10) days, or such
longer period as may be contained in the Notice. If no request for Hearing is submitted within the designated time
frame by the Owner(s), the intended penalty or sanction may be imposed by the
Board of Directors. If the Owner(s)
requests a Hearing, then the following outlined Hearing process shall
apply.
(v)
Copies of the Notice of Opportunity for Hearing shall be
maintained in the Association files by the General Manager, and a copy may be
sent to the Association Attorney at the discretion of the Board of Directors or
the General Manager.
E.
Notice of Hearing.
If a Hearing is requested by the Owner(s), the Board shall schedule a
Hearing and a Notice of Hearing shall be sent to the Owner(s) in the same manner
and subject to the same conditions as the previous Notices. The Notice shall provide that he or she may
be present at the Hearing, may be represented by legal counsel at the Hearing,
may present any relevant evidence, including witnesses and will be given an
opportunity to examine and cross-examine witnesses. The Notice of Hearing shall also advise the Owner(s) that he or
she is not required to be present at the Hearing but that a judgment may be
entered in his or her absence, which may include the imposition of various
penalties or sanctions, including but not limited to, the assessment of charges
and/or fines or the suspension of rights to use the Common Property and
facilities if a violation is found to exist or have occurred.
If the basis for the alleged violation is a
complaint by another Owner(s), a copy of the Notice of Hearing shall be sent to
that owner(s).
Copies of the Notice of Hearing shall be maintained in the
Association files by the General Manager, and a copy may be sent to the Association
Attorney at the discretion of the Board of Directors or the General Manager.
F.
Hearing Schedule.
1.
The Hearing shall be scheduled no sooner than ten (10) days
from the date of the Notice of Hearing.
2.
If the Owner(s) can promptly show good cause as to why he or
she cannot attend the Hearing on the scheduled date and indicate time and dates
on which he or she would be available, or if the Board of Directors, at its
discretion, determines to extend the Hearing date, the Board of Directors may
reschedule the and promptly issue a new Notice of Hearing.
G.
Hearing.
1.
Hearings shall be held before at least a quorum of the members
of the Board of Directors. A majority
of the quorum shall be required for any decision or judgment at the Hearing.
2.
The presiding officer of the Board of Directors shall preside
at the Hearing. If there is no such
presiding officer, the quorum of the Board of Directors present at the Hearing
shall select one of its members to serve as hearing officer and preside over
the Hearing. At the beginning of the
Hearing, the hearing officer shall explain the rules and procedures by which
the Hearing is to be conducted. The
Board of Directors shall determine the manner in which the Hearing will be
conducted, so long as the rights set forth herein are protected. Technical legal rules regarding evidence and
procedure shall not be required and 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.
3.
It is not required that the Owner(s) be in attendance at the
Hearing. At the request of the
Owner(s), any witness or at the discretion of the Board of Directors, the Board
of Directors may determine to hold the Hearing in closed session, subject to
the provisions or limitations of applicable law.
4.
The procedure of the Hearing shall be that the party alleging
the violation shall be allowed to present evidence first. If the basis for the alleged violation is a
complaint by another Owner(s), such party shall be allowed to present evidence
at this time. If the basis for the
alleged violation is information provided or discovered by the Association,
through the Compliance Administrator, the General Manager or the Board of
Directors, designated representatives of such party shall be allowed to present
evidence at this time. Upon completion
of the evidence presented by the party alleging the violation, the Owner(s)
alleged to be in violation or have committed a violation shall be allowed to
present his or her evidence in response.
5.
Each shall party have the right to do the following, but may
waive any or all of these rights:
(i)
Make an opening statement;
(ii)
Introduce evidence, testimony and witnesses;
(iii)
Cross-examine opposing witnesses;
(iv)
Rebut evidence and testimony; and
(v)
Make a closing statement.
6.
The Board of Directors members sitting at the Hearing shall be
allowed to ask questions of any party or witness presented to the extent it is
deemed necessary and appropriate to his or her consideration of the facts and
arguments involved in the case.
7.
Upon the conclusion of all of the evidence presented, the
members of the Board of Directors present at the Hearing shall deliberate. Time permitting, such deliberation may take
place immediately following the Hearing or at any time agreed upon by such
members within a reasonable time period thereafter in order to reach a decision
on the matter. If a violation is found
to exist or have occurred, during such deliberations, the Board of Directors
shall also determine the appropriate penalties or sanctions that shall be
imposed. Unless otherwise determined by the Board of Directors, such
deliberations shall be held in closed session.
8.
Written Notice of the Hearing Decision of the Board of
Directors shall be submitted to the Owner(s) involved within fifteen (15) days
of the date of the completion of the Hearing.
If a violation was found to exist or have occurred, the Notice of
Hearing Decision shall include an explanation of the penalties or sanctions
imposed.
9.
Notice of the Hearing Decision shall be sent to the Owner(s)
in the following manner:
(i)
Hand-delivery or certified mail return receipt requested at
the address appearing on the books of the Association; and
(ii)
Regular mail also to the address appearing on the books of the
Association.
(iii)
If a violation was found to exist or have occurred and the
violating party is a tenant, a copy of the decision of the Board of Directors
shall also be sent to the Owner of the Lot leased by such tenant at the same
time as such decision is sent to the tenant, in the same manner provided.
H.
Penalties and Sanctions.
1.
Notwithstanding any of the procedures outlined herein, the
General Manager and/or the Board of Directors may temporarily suspend the right
of a Owner(s) to use any facility which is part of the Community Property for a
period not to exceed ten (10) days if such Owner(s)’use of the facility is in
violation of the governing documents and there is reasonable belief that
such violation may endanger life, limb or property of the Association, and an
oral request to cease or correct the violation has not been heeded. Notice of any such immediate suspension of
the right to use a facility shall be provided in writing. In addition, promptly thereafter, the Board
of Directors may proceed with the procedures outlined herein.
2.
If, after the Hearing, the Board of Directors renders a
judgment that a violation exists or occurred, the Board of Directors shall
determine the applicable penalty or sanction for such violation. The penalties or sanctions that may be
imposed include the following:
3.
To the extent the violation caused financial damages to the
Association, such financial damages, including legal fees incurred, increased
insurance cost and administrative costs may be assessed against the violating
Owner(s) and such amounts shall be collectible in the same manner as
assessments pursuant to the Bylaws, as amended.
4.
Fines may be assessed against the Owner(s). The fine for any one (1) non-continuing
violation shall not exceed $500.00 and shall be collectible in the same manner
as assessments pursuant to the Bylaws, as amended. The fine for any continuing violation shall be assessed on a
daily basis until the violation is corrected.
Each day the violation continues after the judgment is entered by the
Board of Directors shall be considered a new violation. The daily fine for such continuing
violations shall not exceed $10.00 and shall commence on the date designated by
the Board of Directors in the Notice of Hearing Decision and shall be capped at
the non-continuing violation penalty amount.
Such fines may be in addition to the assessment of financial damages
incurred by the Association. The Board
of Directors may establish a fine schedule for particular types of violations.
See addendum A, “Covenant Compliance Fine Schedule.”
5.
Suspension of rights to use Common Properties and facilities
of the Association. For non-continuing
violations, the suspension of such rights shall not exceed ninety (90)
days. The suspension of rights may be
the sole sanction or may be in addition to other sanctions that may be imposed
pursuant to this Resolution.
I.
Appeal Rights and Procedures.
1.
Rights of Owner(s).
The imposition of penalties rendered without a Hearing may be appealed
to the Board of Directors by the Owner(s) found in violation or the party
alleging the violation.
2.
Notice of Appeal.
The party appealing the decision of the Board of Directors must submit a
written Notice of Appeal to the Board of Directors within ten (10) days of the
date the penalty was imposed. The
Notice of Appeal shall include the following information:
(i)
The names and addresses of the party seeking the appeal and
whether such party was found to be the violating party or was the party
alleging the violation.
(ii)
A brief statement of
the reason for the appeal.
3.
The Board of Directors may make a preliminary review of the
case and make a determination as to whether it will hear the appeal. The Board of Directors may, on the basis of
the preliminary review, elect not to hear the appeal, in which case the Board
of Directors will so inform the party requesting the appeal and the decision of
the Board of Directors shall stands.
4.
If the Board of Directors determines to hear the appeal, the
following procedures shall apply.
J.
Notice of Appeal Hearing. Notice of Appeal Hearing shall be given in the same manner as
that required for the Notice of Hearing applicable to the violation Hearing
held by the Board of Directors. Paragraph
F of these Procedures except that it shall be given by the Board of Directors.
K.
Appeal Hearing Procedures. All of the rights and procedures applicable
to the Board of Directors Hearings shall apply to appeals by the Board of
Directors. Therefore, the procedures
outlined in Paragraph G and H of these Procedures shall be applicable to
appeals.
L.
Effect of Decision. The Board of Directors appeal decision may modify, reverse or
uphold the Board of Directors’ decision in its entirety.
M.
Further Action.
An Owner must exhaust all available remedies of the Association prescribed
by these Procedures before resorting to a court of law for relief with respect
to an alleged violation of the governing documents. The foregoing limitation pertaining to exhausting administrative
remedies shall not apply to the Board of Directors.
II.
INTERPRETATION
A.
These Procedures are intended to ensure that due process
is provided to Owner(s) in proceedings before the Board of Directors.
B.
The Board of Directors, as applicable, may determine the
specific manner in which these Procedures are to be implemented, provided the
due process is protected.
C.
Any inadvertent omission or failure to conduct proceedings
in exact conformity with these Procedures shall not invalidate the results of
such proceedings, so long as a prudent and reasonable attempt has been made to
ensure due process according the general steps set forth herein.
D.
The use of masculine gender includes the feminine and
neuter genders and the use of the singular includes the plural and vice versa,
whenever the context so requires.
Addendum A - Fine Schedule
Lake Linganore Association,
Inc.
Due Process Enforcement
Procedures
Category
/ Type Fine
Amount
Animal Complaints
- Nuisance barking dogs;
animals roaming; animals defecating on LLA $50.00
property.
- Failure to keep
property clear of animal feces. $150.00
Unkempt Yard / Structures
- Failure to keep
property maintained, i.e. landscaping, mowing, etc. $100.00
- Storing of junk,
debris, trash, or other inappropriate materials on property. $100.00
- Failure to maintain
structures on lot (House, shed, play set, fence, etc.) $150.00
Littering / Dumping / Trash
- Dumping on LLA
property. $250.00
- Littering on LLA
property. $50.00
- Placing trash outside
for collection prior to evening of next scheduled pick up. $25.00
Unauthorized Vehicles
- Use of illegal vehicles
(dirt bikes, ATV’s, etc.) on private or LLA property. $250.00
- Parking or storing of
abandoned, junked, partially disassembled vehicle, or $100.00
vehicle not displaying valid
license plates and / or LLA parking tag on LLA
or private property.
- Parking or storing of
boat, trailer, camper or any other vehicle prohibited by $100.00
LLA governing documents.
- Use or storage of any
gas powered motor on a watercraft being operated on