Thursday, August 20, 2015
Proposed Bylaw Revisions to be Voted on at Annual Meeting Sept. 8
During the Annual Meeting on September 8, we will be voting on a number of proposed bylaws changes. These changes have been collected based on homeowner feedback and extensive discussion. For the benefit of your knowledgeable vote, we would ask that you review these in detail before the meeting and submit any questions you have in advance to firstname.lastname@example.org. In addition, we will have a meeting on Thursday, September 3 at 7pm at the Association office to answer questions regarding the items presented.
List #1: Changes proposed by the Committee
The list below is divided into two sections:
1. A list of non-substantive proposed changes which were reviewed and generally agreed to by the Bylaws Committee for submission to the homeowners for voting on September 8, 2015. These items have been approved by the Association’s legal counsel. These will be voted on in the Annual Meeting as one motion.
2. A list of more substantive proposed changes which were reviewed and generally agreed to by the Bylaws Committee for submission to the homeowners for voting on September 8, 2015. These items have been approved by the Association’s legal counsel. These will be voted on in the Annual Meeting as separate motions, as outlined.
Section 1 – NON-SUBSTANTIVE ITEMS FOR SUMMARY VOTE
Article 1 title: should say "Purpose and Status" rather than "Pupose and Status"
Article 2, Section 1: Simplified language, no substantive change. – "Persons Eligible for Membership: The owner of record of any lot in "Parkwood" shown on a plat recorded in the office of the Register of Deeds, Durham County; provided such lot is subject to that certain Declaration of Restrictions Affecting "Parkwood" property of Equitable Construction Company in Durham County, North Carolina, dated August 15, 1960, and recorded in Book 269 Page 675, Durham County Registry, as amended and supplemented. Provided further that no person or Corporation holding title as security for the payment of money or performance of any obligation shall hereby become entitled to membership."
Article 3 is tagged inconsistently with the other Articles of the Bylaws. Subarticles 1 and 2 should become Sections 1 and 2. The content currently described as Sections should be redefined as Items 1-3 and 1-5 in each Section.
Article 3, Subarticle 2, Section 2: Replace "Corporate Secretary/Administrator" with "Association Staff" in three cases.
Article 4. Replace "parklands" with "Common Areas."
Article 5 title: should say "Article 5" rather than "Artice 5"
Article 5, Section 3. Adjust item labeling to reflect consistently with other Articles and Sections. Items a, b, and c should be renamed 1, 2, and 3.
Article 6, Section 2. Special Meeting: Should open with "A special meeting…" rather than "The"
Article 6, Section 3. Notice of Meetings. Replace final sentence with the following – "Such notice shall be mailed to said address not less than ten (10) days nor more than fifty (50) days before any such meeting, and the mailing of such notice shall be sufficient and no further publication or notice shall be necessary. If mailed, such shall be deemed to be delivered when deposited in the United States Mail, addressed to the member at his/her address as it appears on the record of members of the Association, with postage thereon prepaid. It shall be the responsibility of the individual members to keep the Secretary informed of their current addresses. In the absence of instructions from an individual member as to his/her address, the Secretary shall be entitled to rely on the most recent records of the Durham County Tax Collector to determine the addresses of the owner(s) of a Lot. The notice of any meeting shall state the time and place of the meeting and the items on the agenda."
Article 6, Section 5. Quorum: Should read: "Members present shall constitute a quorum for the transaction of business at a meeting of the membership."
Article 7, Section 1, paragraph 2: Remove clause in second paragraph. "Immediate past president shall be an ex-officio member of the newly elected Board of Directors."
Article 7, Section 5: Replace word "fees" with word "compensation."
Article 7, Section 11: Replace "Corporate Secretary/Administrator" with "Association Staff" in the "shall act as Secretary" sentence.
Article 8, Section 7: Remove sentence "If the elected officers of the Board shall number less than three (3), then one or more additional members of the Board may be elected to the Executive Committee by the Board." (PURPOSE: Based on other bylaws, it is not possible for there to be less than three officers.)
Article 11, Section 1, Item a: Change to "Present a monthly financial statement to the Board of Directors for comments or questions."
Section 2: SUBSTANTIVE ITEMS FOR SUBMITTING TO HOMEOWNERS, TO BE VOTED IN SECTIONS, AS DIVIDED BY HORIZONTAL LINES
Article 2, drop Section 2. Renumber subsequent sections appropriately. (PURPOSE: to drop language referring to "Certificate Holders" as a matter of procedure that is no longer in practice for the Association.)
Article 2, Section 3: Change to "Voting Rights of Members: There shall be one vote for each lot."
Article 2, Section 4: Adjust all uses of "Certificate Holder" to "Member." Adjust filing of proxies with "Corporate Secretary/Administrator" to "Board."
Article 2, Section 5: Termination of Membership. "Membership will terminate when any member shall cease to be the owner of record of such a lot. The membership status will be cancelled on the records of the Association and neither the Association nor any of its members shall be liable to the former member whose membership is so terminated for any distributed share of the Association’s assets or otherwise. Termination of membership shall in no way relieve the lot owner of the obligation to pay the charges due the Association nor in any way affect the lien of all such charges upon the lot."
Article 2, Section 6 and ALL subsequent Bylaws: Adjust all uses of "Certificate Holder" to "Member"
Article 3, Subarticle 1, Section 1: Replace language with – "Operating funds of Parkwood Association shall be derived from assessments, sponsored events, leases, licenses, rentals, late fees, interest on Association funds and other sources."
Article 3, Subarticle 1, Section 2: Replace language with – "The annual assessment shall be determined by the Board of Directors."
Article 3, Subarticle 1, Section 3: Conclude "Any Certificate Holder who has not…" sentence after "become delinquent on April 1." Begin a new sentence at that point.
Article 3, Subarticle 2, Section 5: Replace with "Multi-year contracts must be included in the annual budget and have to be approved by the full Board. Anything that obligates the Association to a purchase agreement which will take several years/budgets to buy shall require the approval of the general membership at a general meeting. The sale of such assets shall also require the approval of the general membership at a general meeting."
Article 4, NEW Section 4. Rules & Procedures for Future Easement Use of Parkwood Association Parklands
The overall goal of this section of the bylaws is to preserve the Parklands (including the ponds and the Lake) in their scenic beauty for the mutual benefit of all property owners and for the enjoyment of the entire Parkwood community. Any homeowner interested in obtaining an easement to place all or part of a structure on Parkland or to have exclusive use of parkland for another purpose, such as a garden, must follow the process outlined below:
1. The homeowner must establish a clear definition of the exact geographic area of the Common Area for which he is seeking an easement through a survey map of the Common Area in question, with full dimensions referenced to the homeowner’s property lines.
2. If the easement will involve placing a structure on the Common Area, detailed plans must be established that conform to those required by the City of Durham, NC to obtain a building permit.
3. These items described in Items 1 and 2 above must be submitted in writing with a formal request to the Board for review and approval.
4. If deemed appropriate by the Board, neighboring property owners adjacent the area in question will be polled for input as to the potential impact of these plans on their property.
5. The Board will vote as to the acceptability of the documented request by the homeowner. The Board’s agreement will result in a written approval sent to the homeowner.
6. If the Board approves issuing the easement, it will direct the Association’s attorney to draft a legal easement document appropriate for filing with the Durham County Register of Deeds. As part of the easement document the property owner must agree to release the Association of any liability responsibility for the property or structures involved. The homeowner assumes full liability for the property in question, and shall indemnify Association for any and all costs the Association incurs due to the easement. Preparation and filing of this document will be at the expense of the requesting homeowner. Said easement will be returned to the Board to be filed by the Association.
7. The homeowner will be responsible to file the building permits with the appropriate City or County of Durham administration offices.
8. Any structures approved by the City of Durham for construction must be maintained in accordance with City of Durham requirements through the duration of the granted easement.
9. Easements granted and associated responsibilities, in accordance with the above procedure, shall be assumed in whole by all grantees, heirs, successors and assigns of the property to which the easement was granted at the Board’s discretion.
10. Failure to follow these rules and procedures, may result in the removal of structures and termination of easement privileges. Any costs of these actions will be the responsibility of the homeowner and will be added to their Association account.
Article 5, Section 1: Strike the fourth paragraph which defines the Community Standards Committee.
Article 5, Section 2: Retitle the section as "Community Standards Enforcement"
Article 5, Section 2, item 1: Change to "The Association is responsible for:"
Article 5, Section 2, item 1, subitem a: Change to "Complaints are registered and maintained by the Association. The Board shall have the right…"
Article 5, Section 2, item 1, new subitem b: "Respond to the complainant regarding receipt of the complaint and when or if action taken." Shift items b, c, and d to c, d, and e based on this addition.
Article 5, Section 2, item 2, replacing prior items 2-4: In the event of a violation of the Declaration, Community Standards, or other Rules and Regulations of the Association, a hearing shall be held before an adjudicatory panel of members who are not Board members appointed by the Board to determine if any Member should be fined or if planned community privileges or services should be suspended. The following procedure shall be followed:
a) Notice of the hearing shall be mailed via first class mail to the Member.
b) The date and time of the hearing shall be set by the adjudicatory panel not more than two (2) weeks after the notice was mailed.
c) In deciding upon sanctions, the panel shall consider the severity, duration, and persistence of a single violation or whether an accumulation of several violations has or continues to be occurring.
d) If it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs. Such fines shall be assessments.
e) If it is decided that a suspension of planned community privileges or services should be imposed, the suspension may be continued without further hearing until the violation or delinquency is cured.
f) The lot owner may appeal the decision of an adjudicatory panel to the full executive board by delivering written notice of appeal to the executive board within 15 days after the date of the decision. The executive board may affirm, vacate, or modify the prior decision of the adjudicatory body.
g) The panel may choose to keep the hearing open for a specified period of time if the owner presents mitigating circumstances such as hospitalization or extended absence from the community.
h) The owner may appeal the decision of the adjudicatory panel by delivering written notice of appeal to the Board. The Board must receive the appeal notice within fifteen (15) days of the date of the decision by the adjudicatory panel. The appeal shall be heard at the next regularly scheduled meeting of the full Board in Executive Session, or at a special meeting of the Board if determined to be necessary for this purpose by the Board. The Board may affirm, vacate, or modify the prior decision of the panel. The Board may grant a variance or delay in imposing sanctions if the owner submits a plan of compliance, presents an explanation why additional time is needed, or otherwise presents mitigating circumstances acceptable to the Board.
Article 5, Section 3. Add a statement to the front of the introductory paragraph. "Community Standards exist for the safety of the community and continued maintenance of property values."
Article 5, Section 3. Add new item 4: "The Association reserves the right to address other community nuisances within the scope of the Declaration and pursuant to the Association’s rules-making authority in § 47F-3-102 (1)."
Article 7, Section 1, new paragraph 3 (all other paragraphs moved down accordingly): "The annual election of directors will be recorded on audio and/or video and posted in a secure location, available to homeowners only, within 10 days of the election."
Article 7, Section 1, paragraph 4: Replace sentence beginning with "However…" with the following – "However, if a position on the Board cannot be filled with a Parkwood resident owning property within a given district then that district position may be filled on an "At-Large" basis by any member in good standing elected from the general membership and the election of said director shall be by vote of the entire membership. This "At-Large" director shall be elected for a term of one (1) year (commencing October 1)."
Article 7, Section 1, paragraph 5: Replace entire paragraph with "Districts will remain permanent with no future changes. No lot shall be added to, or deleted from existing Districts."
Article 7, Section 2: Replace paragraph with: "For purposes of effecting more continuous communication and coordination throughout the Parkwood Community, the Board of Directors may solicit the nomination of a Liaison Representative from relevant organizations to the Board of Directors. The Liaison Representative must be approved by the Board of Directors. The Liaison Representative shall serve for a period of 1 (one) year, or until the succeeding Annual Meeting when a new Board of Directors is elected. The Liaison Representative is subject to removal by the Board of Directors."
Article 7, Section 3: Replace paragraph with: "The Board of Directors may appoint a member in good standing to fill a vacancy on the board, but such action shall be effective only until the next ensuing Annual Membership Meeting at which time any remaining unexpired term shall be filled by election. The residence of the new Director shall be in the district represented by the Director who created the vacancy. If more than 1 (one) candidate applies for the position, an election from the affected District shall then be conducted.. A vacancy may be filled on an ‘At-Large’ basis provided that the vacancy is publicized and a bona fide effort is made to fill the vacancy from within that district for at least two weeks.
Article 7, Section 4: Adjust end of "Should any Director without excuse…" sentence as follows – "…be voted upon by the Board of Directors. Their membership will continue unless a majority of the full Board votes to terminate said Director."
Article 7, Section 4: Replace resignation sentence with "Any Director may resign at any time by giving written notice to the Board."
Article 7, Section 6: Replace entire section with: "The election of officers to fill the positions of President, Vice President, Treasurer and Board Secretary shall be held no later than the regular October monthly meeting of the Board of Directors"
NEW Article 12 "Secretary"
Section 1: The Secretary shall do, or cause to be done, the following:
Record, distribute, and preserve Minutes of meetings of the Board or of the membership.
Provide notice to the Board or membership, as appropriate, of upcoming meetings.
Maintain and preserve in an appropriate place and manner all documents and files pertaining to the operations, activities, and history of the Association.
Maintain appropriate information and records concerning members of the Association, and make these available to the Board and others as appropriate.
Article 13: Rename "Association Committees and Staff"
Article 13, Section 1: Change to "The Board may form committees or hire staff as needed to fulfill duties on behalf of the association." Drop all sub points.
Article 13, Section 2: Drop this section.
List #2: Additional Changes submitted
These items will only be voted on at the annual meeting if submitted by individual homeowners for motion at that time. They are included here to allow for advance consideration in preparation for a possible vote. Where possible, we have obtained legal counsel feedback and included it here.
LEGAL COUNSEL PROPOSED revised Article 1, Section 1 Purpose: The powers, purposes and duties of Parkwood Association (the "Association") shall be:
A. To operate, maintain and preserve all property owned by Parkwood ("Common Areas"), the signs, landscaping, and all roads, streets, decorative and protective structures (including but not limited to entry monuments and buffer walls), ponds, lakes, utilities, landscaped areas and other improvements located on the Common Areas, if any;
B. To enforce the provisions of these Bylaws, the Declaration, any Supplemental Declaration, the Articles of Incorporation, the Architectural Guidelines, and any rules and regulations promulgated by the Association, as the same may be amended from time to time;
C. To have all rights and powers and to perform all duties and obligations under the Declaration;
D. To have all rights and powers and to perform all duties and obligations of an owner’s association as provided by Article 3 of Chapter 47F of the North Carolina General Statutes, the terms of which are incorporated herein, as they may be amended from time to time; and
E. To promulgate and enforce the rules and regulations and administrative rules and regulations for use of the Common Areas.
(PURPOSE: Making this change expands the definition of our purpose to be consistent with modern HOA language.)
LEGAL COUNSEL REVIEWED Article 3, Subarticle 1, Section 3: Add a sentence following the "Any Certificate Holder who has not…" – "All delinquent or past due accounts will be subject to a one-time late fee to be established by the Board. " This replaces the "Past due accounts will be subject…" sentence at the end of this Section.
(PURPOSE: Making this change gives the board the flexibility to adjust the late fee up or down if they determine it’s in the best interest of the Association.)
LEGAL COUNSEL ADVISED AGAINST Article 3, Subarticle 2, Section 5: Add a sentence – "Contracts which commit PA assets in excess of $20,000 per year for new services with the exception of repair and maintenance of existing assets require homeowner approval."
(PURPOSE: This change limits board authority to make financial decisions on behalf of the Association. Our legal counsel suggested this could prevent board effectiveness.)
LEGAL COUNSEL PROPOSED Article 6, new Section 8: Voting List. At least ten (10) days before each meeting of members, the Secretary of the Association shall prepare an alphabetical list of the members entitled to vote at such meeting or any adjournment thereof, with the address of each, which list shall be kept on file with the book of records of the Association. This list shall be produced and kept open at the time and place of the meeting and shall be subject to inspection by any members during the whole time of the meeting.
(PURPOSE: Our legal counsel proposed adding this language to formalize a protocol for maintaining a list of members eligible for voting.)
LEGAL COUNSEL REVIEWED Article 7, Section 1, Paragraph 2: Add statement to end of paragraph - "In the event that a single lot is owned by multiple parties, only one of those parties may be elected to the Board."
(PURPOSE: Making this change limits the amount of control one lot owner can have on the Board and therefore the Association.)
LEGAL COUNSEL HAS NOT REVIEWED Article 7, Section 1, Paragraph 4: Replace "property owners" with "Parkwood residents."
(PURPOSE: This would allow non-owner residents to serve as Directors.)
LEGAL COUNSEL ADVISED AGAINST Article 7, Section 4: Add sentence between "Any Director may be removed…" and "Should any Director without excuse…" – "Cause may include, but not limited to, or could be defined as any action that is not protected under the existing Declaration and or causes damage to the reputation of the board or individual homeowners through immoral or unethical activity."
(PURPOSE: Leaving "cause" undefined leaves room for board members to define too narrowly or too broadly than may be in the Association’s best interests. Legal counsel advised that it be kept as general as possible.)
LEGAL COUNSEL REVIEWED Article 7, Section 8: Add sentence at end of paragraph – "Per Section 55A-211 of the NC Planned Community Act, Electronic voting will only be available when all current Board members have agreed in writing to participate in electronic voting."
(PURPOSE: Electronic board voting has the potential to enable the board to operate more efficiently when tight timelines require it. Opponents contend that it may discourage the active participation of board members who are less technologically savvy AND that it may be difficult to verify the vote or comments of a particular board member for record keeping purposes.)