[VCHPOA Agenda] Minutes 27-Dec-2005 Special Meeting

[Agenda distribution list]

[As received from VCHPOA Secretary, 1/14/05]


Virginia City Highlands Property Owners' Association
Minutes - Special Meeting
Tuesday, December 27, 2005
 
PRESENT:  Woolley, Lumos, Gravenstein 
ABSENT:  Bent, Landaburu

1.  Call to order and approve meeting agenda

A quorum being present, the meeting was called to order by President 
Woolley at 7:15 pm.  

There being no objections, the agenda was approved as published.


2.  Comments by association members (NRS 116.3108(3) (discussion)

Mrs. Judson asked whose is responsible for the drainage problem created 
by the grading of a lot on Cartwright just east of Musket.  President 
Woolley stated that it will be the property owners´ responsibility to 
ensure that drainage is adequate once construction is completed.  He 
noted that the culvert of the neighbor to the east may have been filled 
and that there could be future drainage problems there.  Joe Alt stated 
that the County should be involved in enforcing proper grading.  Bill 
Redman of the Architectural Committee may be asked to inspect the 
property for possible violations. 

Stephen Musser indicated that the owner will be at the Architectural 
Committee at the next regular meeting for review of their plot plans.  
The issue can be addressed with them at that time. 

Mr. Musser pointed out that there is a problem with grading for 
construction on Lot 115A and 116A, Block M on Empire Rd. that is causing 
drainage onto the adjacent property.  This grading is on private property 
along a private access drive, does not affect association roads, and is 
not the responsibility of the POA. 


3.  Appeal of Architectural Committee decision by James and Stacy 
Sipaila. (discussion/action) 

Original plans for the property which is on the corner of Calaveras and 
Bonanza Roads were submitted to the Architectural Committee by Joe Alt.  
The minutes of the Committee meeting indicate that the owner did not 
remain at the meeting to answer questions about the project so the 
application was denied.  The Sipailas have appealed that decision.  
Although the action took place some months ago, the appeal was delayed 
until the new board was seated.  

President Woolley asked that all parties address their comments on the 
matter to the board and not to each other.  

The original application was under the 2003 Architectural Guidelines.  
There was no written requirement for the applicant to remain at the 
meeting contained in those guidelines.  Stephen Musser, chairman of the 
Architectural Committee, stated that the fees had not been paid and that 
the Committee had many questions about the project.  Mr. Musser said that 
one of the questions was with the plan being similar or a duplicate of 
another built within 1000 feet.  

President Woolley stated that NRS 116 states that if regulations are not 
enforced the same for all cases they become null and void and that there 
have in the past been similar homes approved within 1000 feet of each 
other.  He questioned whether this restriction is now enforceable. 

All parties agreed that there is not a house with a similar elevation 
within 1000 feet of the Sipaila property so this is not an issue.  Mr. 
Musser stated that since the applicant was not present, the plans were 
not reviewed at the Committee meeting and the application denied. 

President Woolley asked Mr. Musser to review the plans the Sipailas 
submitted to the board to determine whether they are in compliance with 
the 2003 guidelines.  The review found the setbacks are in compliance 
with the guidelines and CC&R´s; the square footage is sufficient; the 
pitch of the roof is in compliance; and the materials and color for 
siding and roofing are approvable.  

President Woolley opined that since the application was made under the 
2003 guidelines the fees in effect at that time should be assessed.  

    A motion by Gravenstein, seconded by Lumos to approve the plans as 
    submitted and assess a fee of $100 was approved unanimously.  

The applicant will need to appear at the next regular Architectural 
Committee meeting so that all forms can be completed, plans signed, and 
the fee paid. 

Mr. Musser noted for the record that the Committee has long required that 
an applicant be present in order for review and approval of plans to take 
place.  Many stated that this has not been uniformly enforced over the 
years.   


4.  Location and access problem of a portion of Clemons Drive being 
constructed outside the easement affecting Lots 67 and 68, Block N and 
Lots 13 and 14, Block P, Virginia City Highlands Unit 1. 
(discussion/action) 

Clemens Drive is not entirely within the roadway easement through Lots 67 
and 68, Block N.  The road has likely been in its current location since 
the original development of the Highlands.  It is believed that there are 
utilities located under the existing roadway.  There is reason to believe 
that a prescriptive right to the roadway exists due to long use by the 
homeowners in the area. 

President Woolley reported that Lydia Hammack, a member of the Planning 
Commission, discussed the issue with Dean Haymore of Storey County.   He 
reported that it is Mr. Haymore´s opinion that the properties on the 
southeast side of the road do have access to the existing roadway through 
the platted roadway easement.  The owners of those lots cannot make any 
use of the land between their property boundaries and the existing 
roadway other than for a driveway across the easement to the roadway.  
The owners of the lots in which Clemens Drive is located may move the 
road to be within the easement if they so wish. 

It was determined that no action by the association regarding the road 
location is necessary. 

President Woolley stated that the prospective buyer of the home on Lot 68 
is concerned that they will be liable for moving the road or other 
construction in the future. 

President Woolley stated that the Architectural Committee had approved 
plans for the house on Lot 68 and then later notified the builder, Joseph 
Alt, that the approval had been revoked.  Storey County officials have 
said that they do not recognize a revocation, once approved, from the 
Committee for permitting purposes and allowed construction to proceed. 

Stephen Musser reported that the Architectural Committee had asked the 
builder if there were any similar houses within 1000 feet of this house 
and were told that there were not.  A later inspection revealed that 
there are two similar houses within 1000 feet.  The Committee notified 
Mr. Alt that the approval was revoked on that basis.  

Mr. Alt stated that he told the Committee that there were similar houses 
within about 500 feet and that he does not agree with the statement that 
he misled the Committee.  Mr. Alt stated that the minutes do not reflect 
his recollection of the meeting.  There was no recording of the meeting. 
 
It was pointed out that the houses, although similar, are not identical 
in elevation and color.  The governing documents do not provide for 
revocation of approval.  If it could be proven that false information was 
given the Committee there may be cause for revocation. 

    A motion by Gravenstein, seconded by Lumos that the Architectural 
    Committee should issue another letter which rescinds the revocation of 
    approval of the plans and affirms the previous approval was unanimously 
    approved.  

Secretary Lumos will email a copy of the motion to Stephen Musser. 


5.  Board members questions and issues concerning C.C. & R´.s, By-laws, 
and Articles of Incorporation that may be presented to the association´s 
Attorney for clarification.  (discussion/action) 

A list of suggested questions to be asked of the association attorney was 
reviewed and additional questions were added to the list.  (The list is 
attached to these minutes.)  It was agreed that the association attorney 
should be asked to provide opinions on the issues discussed. 

Secretary Lumos volunteered to be the liaison with the attorney in this 
matter.  


6.  Adjournment. 

There being no further business the meeting was adjourned at 9:45 pm. 


Respectfully submitted, 



Rita Lumos, Secretary  


Questions for clarification by the association´s attorney

*   What is the hierarchy of documents, i.e. CC&R´s, By-Laws, Articles of 
    Incorporation, Architectural Guidelines?
*   The By-Laws states that the Association has been created as a rural 
    agricultural residential common-interest community pursuant to NRS 
    116.1201.  This statement was apparently added within the last few years 
    in an attempt to exempt the association from the requirements of NRS 116. 
     Is it a valid statement?  If not, should it be removed?  
*   If the association does not qualify as a rural agricultural residential 
    common-interest community, does the language naming it as one in the By-
    laws make it subject to all of the provisions of the open meeting law?  
*   The CC&R´s state that they shall exist and be binding until December 31, 
    1996 and shall be extended for successive periods of ten years each 
    unless an instrument signed by a majority of the then owners of the lots 
    subject thereto has been recorded, agreeing to change these restrictions 
    in whole or in part.  If the restrictions expire in 2006, what 
    specifically must be done to extend, cancel, or change them?  Do we have 
    other options?   
*   The CC&R´s contain language regarding an architectural control and 
    planning committee and have very broad and vague requirements for 
    buildings to be "in harmony" with the general surroundings.  How much 
    authority does the board or architectural committee have to set standards 
    for approved colors, construction materials, etc.?  
*   The CC&R´s state that the decision of the Architectural Committee if 
    final.  The Architectural Guidelines provide for an appeal of a committee 
    decision to the board.  Is an appeal process appropriate?  
*   The CC&R´s also allow reasonable variances and adjustments of the stated 
    conditions and restrictions to overcome practical difficulties, etc.  How 
    much latitude does the association have in waiving the requirements of 
    the CC&R´s?  As an example, the CC&R´s require that 50% of the exterior 
    finish of a residence be unpainted natural wood.  Is the high fire danger 
    in the area sufficient reason to waive the wood requirement and allow 
    other building materials that are more fire resistant?  
*   Where is the authority given for the Architectural Review Committee 
    and/or the board to set and change fees for the review and approval of 
    construction plans?  
*   The amount of the annual dues is contained in the CC&R´s and is nearly 
    impossible to change.  NRS 116.3115 and NAC 116.415 require the 
    association to assess dues necessary to operate the association and fund 
    the reserve account.  Since the dues restriction in the CC&R´s may not 
    always allow for adequate funding is the association in violation of the 
    law and administrative code?  If so, what can be done about it?  
*   NRS 116.31065.5 states that any rule that is not uniformly enforced may 
    not be enforced against others.  Under this statute, is there a way to 
    negate past actions (or inactions) and enforce the rule from that point 
    forward?  Does approval of new architectural guidelines grant a "fresh 
    start"?  Does granting of a variance for a single property owner grant a 
    variance for all?  
*   Can the time for a vote on changes to the CC&R´s be extended for a 
    substantial period of time so that those who have not responded by a date 
    certain could be contacted?