Town Crier Articles

2022 Final Draft Governing Documents – What’s Different from 2021?

Posted on August 1, 2022 5:59 AM by Mary Cheston, President, Board of Directors

Categories: NTRA Business

Starting in mid-August, owners in the New Town Residential Association will be asked to vote on new governing documents – as a package. (We vote on them as a package because they all need overhaul and are interrelated. We need to keep them consistent with each other rather than have piecemeal governing documents from different decades or end up approving one document and not another possibly creating conflict among the different provisions.)

These documents include:

Articles of Restatement
Amended and Restated Bylaws
Second Amended and Restated Master Declaration of Protective Covenants and Restrictions
Two Supplemental Declarations (one for Village Walk and one for the remaining consolidated neighborhoods of our community).

Why are these new documents needed? Our existing Governing Documents date to 2005, are antiquated, and do not reflect current statutory requirements. They also provide the Developer’s perspective and authoritative language, which no longer apply to our situation. Our new draft documents reflect the Association as it currently operates under Homeowner - not Developer - control, and as it should operate under Virginia law. They are streamlined and more user-friendly. When an HOA turns over from the developer, experts unanimously recommend that governing documents be revised. Their purpose is two-fold: to live in the present and to prepare for the future.

Several provisions of the 2021 draft documents caused concern within the community. The current Board of Directors has examined these concerns and is proposing revisions in several areas. Below is a summary of three key issues raised last year and how they were addressed. If one of these issues was your lightning rod/”cannot support”/hot button, please seriously consider the impact of rejecting any of these three revisions.

We recognize that not everyone will be happy with this outcome. As a whole, these texts are a big improvement, clearer and easier to administer than what is now in place. Compromise and recognizing the stake that each Member has in having a well-structured HOA will be key to the documents’ passage. We need 2/3rds of all owners (about 407 votes) to adopt these documents. For the greater good of the community and to help us move forward with a strong and current legal framework, we ask that you support the Board’s final proposal with your vote.

ISSUE RESOLUTION

I. Landscaping for fenced yards

2021 text (Supplemental Declarations 4.1 and 4.2):

“3.2 Landscape Services. The Association shall provide the following landscape services to be included in the Services Assessment component of the Annual Assessments as set forth in the Declaration:

(a) mowing, edging, and trimming of grass within portions of all Lots not located inside a fenced area (see Section 4.1 below).

(b) Trimming of shrubs, trees and bushes up to a height of fifteen feet (15’) within portions of all Lots not located inside a fenced area (see Section 4.1 below).

(collectively, the “Landscape Services”).”

“4.1 Fenced Yards. The Association shall provide Landscape Services to any yard outside of a fenced yard, including, front yards that are not fenced. The Association may provide Landscaping Services as identified in Section 3.2 (a) (b) and (c) to fenced yards upon request, to be funded by Individual Assessments to the Owners of Lots that have fenced yards based on an annual average cost by home type as determined by the Board. “

2022 final draft:

“3.2 Landscape Services. The Association shall provide annual landscape services to all Lots as determined by the Board and outlined in the Association landscape contract. The Board may determine that landscape costs to an individual Lot are a burden in relation to other yards due to fencing, large landscape beds or other conditions. In this case, the additional cost will be assessed as an Individual Assessment to the applicable Owners of Lots and announced as part of the annual budget process.”

Rationale: The new text simplifies and reduces the size of the landscaping portion of the document. It also gives the Board flexibility to address future landscaping issues when they arise based on contract costs and other changing factors. For example, we are awaiting bids for the 2023-2025 landscape seasons that will identify what requirements landscapers will impose to care for fenced yards This specific situation will be clearer in September.

IMPACT OF YOUR VOTE:

“No” vote – homes with fenced yards will not receive mowing and pruning within their fenced areas (see current Supplemental Declarations for this limitation)
Yes vote – homes with fenced yards may receive all landscape services, with possible additional fees to be determined annually by the Board based on the Association’s landscape contract

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II. Village Walk Future Obligations

2021 text: (Village Walk Supplemental Declaration 3.6)

“3.6 Future Obligations. Should the Association assume any of the obligations of the Supplemental Maintenance Agreement dated November 20, 2012 by and among FCP Settler’s Market, LLC, Wal-Mart Real Estate Business Trust, FCP Settler’s Market II LLC, previously applicable to the Parcel Developer, as set forth in the Acknowledgment and Assumption of Supplemental Maintenance Agreement dated March 14, 2014, the costs of these obligations shall be assessed equally against each Owner as part of the Services Assessment or as a Special Assessment as set forth in Article VI.”

2022 final draft: Section deleted.

Rationale: This provision was carried over into the new documents because it represents a present “obligation” of Village Walk owners and the Association. Over the course of a year, the Association has been unable to obtain clarification of this commitment from James City County or the principals involved in the original “Supplemental Maintenance Agreement.” To date, the Association has not received any communication regarding any obligation associated with the “Future Obligations” nor has it ever received any billing statement. We have decided to remove the language and if a future claim is made that the Association has some responsibility for any of the maintenance costs, the Board in place at that time will need to review and determine the obligation under these new documents (Common Areas funded under our General Assessment component).

IMPACT OF YOUR VOTE:

“No” vote – the Supplemental Declaration continues to include a vague paragraph that the owners in Village Walk may be obligated for possible future maintenance expenses related to property now owned by Settlers Market LLC, namely 2 BMPs and most of the land adjoining Casey Boulevard. (See current Village Walk Supplementals, Section 8(e))
Yes vote – there is no special provision, and if in the future the Association receives notice of an obligation, it can be reviewed at that time. If the Association actually has any responsibility, it will be part of our annual general maintenance budget.

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III. Additional Area

2021 text: (Second Amended Master Declaration 2.3)

“2.3 Member Approval to Subject Adjacent Real Property to Declaration. The Association may submit any real property which is contiguous or adjacent to or in the immediate vicinity of New Town (Adjacent Property”) to the provisions of this Declaration and the jurisdiction of the Association with the approval of the owner of the property to be added, and the affirmative vote of a majority of the Members at a meeting at which a quorum of thirty-three percent (33%) of the Members is present….”

2022 final draft

“2.3 Member Approval to Subject Adjacent Real Property to Declaration. The Association may submit any real property which is contiguous or adjacent to or in the immediate vicinity of New Town (Adjacent Property”) to the provisions of this Declaration and the jurisdiction of the Association by approval of not less than two-thirds (2/3rds) of the Owners who are eligible to vote. The approval of the Owners shall be evidenced by written or electronic ballot at a duly called meeting of the Association.”

Rationale: Several commenters asked that this provision be deleted to limit any further expansion of the New Town Residential Association or that the approval threshold be raised. Although this section has largely been associated with the potential future development of Eastern State Hospital’s surplus property, it applies to any real estate within a 2-mile radius of current NTRA property, e.g. the empty lot in front of the Pointe Apartments. Therefore, rather than delete it, we raised the threshold to leave the possibility to accept additional development if the property owner can make a convincing case to the community for adding it. To permit this future flexibility, our final draft approval level would be the same as required to amend the Master Declaration itself-2/3 vote of all owners. To add property to the Association is a major change that should involve all Owners.

IMPACT OF YOUR VOTE:

“No” vote – the ability to add property to the Association has expired. (See current Amended Master Declaration, Section 2.2)
Yes vote – the decision to add property, such as the Eastern State Hospital surplus property, requires the consent of a supermajority of the Members of the Association.

Comments

Comment By: Kathleen Lesnevich

Posted on August 2, 2022 10:42 AM

Re landscape/fences
The proposed change was a significant attempt to appease homeowners,however, I question the increase cost. There is no increase in cost for opening a gate and providing service. Small mowers are being used in all backyards now. There is absolutely no increase in work for opening a gate for trimming. I fear this concept will be used by the board to cover other costs.
REPLY: As explained in the article, the multi-year landscape contract will determine what services are provided.

Last Edited: 08/02/2022 at 08:43 PM

Comment By: Tom Dawkins

Posted on August 2, 2022 7:05 PM

Like the Seinfeld episode, the fence revision is a “bylaw about nothing”. The Board MAY or MAY NOT cut inside your fence? The Board MAY or MAY NOT charge an individual assessment? Will those who bought mowers, per Board action, be able to opt out to avoid an extra fee? Why not simply delete the fence bylaw to make inside the fence maintenance part of the standard HOA fee and bid accordingly.
REPLY: As explained in the article, the multi-year landscape contract will determine what services are provided. These services and their cost will be announced during the budget process.

Last Edited: 08/02/2022 at 08:44 PM

Comment By: NEAL WITHERSPOON

Posted on August 4, 2022 4:52 PM

This new revision opens pandora's box for the Board of Directors to impose an additional assessment fee on any homeowner with a fence, large lot, or type of landscaping that any landscaping contractor determines as a hindrance. I don't think I want to give the BoD the opportunity to charge extra at any time they may see in the interest of a contractor or to possibly add more dues to the annual budget than necessary. As stated in this article there are already budget discrepancies that are putting us in the red, our HOA budget hasn't had this problem in over 8 years.
REPLY: The Board Buzz, not this article, speaks to our current financial position. Those issues are unrelated to landscaping costs.
Note that our current documents already provide the Board with the ability to charge a "Limited Common Expense Assessment" for "the cost of providing certain services to individual lots" (Master Declaration, Section 5.3(c) 1). So even without the new documents, the Board can consider charging owners for certain landscape services based on usage.

Last Edited: 08/06/2022 at 09:00 AM

Comment By: Thomas Nichols

Posted on August 5, 2022 11:02 AM

The HOA Board Needs to revert to the way it was before the separation of Fenced Yards and no fences.
This community has been Marketed as a Full Service Landscaping Community for over 14 plus years with fenced yards getting all landscaping. Many of us moved here because of this.
Because the board voted to delete fenced yard grass moving; Two Residents have moved out and one widow I know will sell her Town Home because of this.
We need a Cohesive community (Not Fences versus no fences; like the Dr. Seuss story of Sneetches with Stars on There Bellies versus No Stars)
The Board with this single no grass cutting mandate on Jan. 15, 2022 has had a negative impact on many people (Single older Ladies/Men, Widows, those with medical issues as well as financial impact on most older residents on fixed income).
This year has seen yards being cut by different contractors and residents with fences each day of the week with odd daily noise issues. Some yards have grass growing high thus becoming a Health Hazard.
The Jan. 15 letter offered no list of available yard contractors to use.
New Town is becoming a less desirable area to live in and Property values could be lowered.
Please Return Full Yard Services to all Resident Yards with Fences.

REPLY: The Board has examined a variety of approaches and scenarios for handling the increasing costs of landscape services. The proposed revision to the documents is based on a comment/suggestion from an owner. The Board will be able to consider whether services to an individual Lot are a burden in relation to other yards - i.e. apply a fairness, usage approach to these assessments. Without this change, no mowing or pruning will be provided to fenced yards, per our existing documents.

Last Edited: 08/06/2022 at 09:05 AM

Comment By: Kay Grady

Posted on August 5, 2022 3:44 PM

The new revisions state that the Board would charge an individual assessment for those of us with a fenced in backyard wishing to utilize the services of the new landscape contractor. Who exactly will be determining the costs and based on what specific methodology?

Will the individual assessment be a separate billing from Chesapeake Management? Will that not cause more accounting work for them to keep track of? What if one wishes to discontinue the "group" landscaper mid-season - who does one contact to stop the service and the individual assessment bill?

What if the bid/assessment we receive from NTRA is more than what we have been paying privately this summer? Will we be able to continue with another landscaper or is the Board looking for consistency with only one landscaper being allowed in the neighborhood to handle the fenced in yards? Or is the only other choice is we do the work ourselves?

What happens if people don't cut the grass in a fenced in backyard and it becomes a health hazard? Who will be responsible to make sure the fenced in backyards are in compliance? Who will be responsible for reporting it to JCC?

Can the owners of a fenced in backyard do their own landscaping without ARC approval? Can they choose to take up all the grass and replace it with mulch or pebbles? If the work is done by the homeowner over a period of time versus all at once by a contractor, does that necessitate going through an ARC approval?

These are the questions I would like to see answered before deciding how to handle the situation moving forward. Things have changed so dramatically since purchasing this property (with no intent of doing yardwork) that I need help in making a decision about what to do next with my little fenced in yard that is consistent with my fellow Federal Townhomes and provides me the security I desire.

REPLY: Thank you for these questions which we will put on our list for the August 17th Zoom information session.

Last Edited: 08/06/2022 at 08:52 AM

Comment By: Tom Dawkins

Posted on August 5, 2022 11:04 PM

WHY would the Board persist with a new opt-out policy that satisfies the needs of exactly zero of the approximately 10 percent of homeowners who currently opt out of one or more landscape services? Makes absolutely no sense.

Homeowners, such as Mary, will no longer be permitted to opt out of individual services such as pruning.

Homeowners will be forced to work around this new policy by asking the landscapers directly not to cut their lawn, for example. This is what happens today. Therefore, exactly what does the Board think this new policy will accomplish?

In fact, if I and others follow the new policy and choose to no longer opt out, this will add to the burden on the landscape contractor in terms of extra material and/or labor.

No more getting paid for no work! Funny thing, I always thought I was doing them a favor when I asked them to move onto the next lawn.

Perhaps someone will finally learn the lesson of not kicking the gift horse in the mouth.

Board members, what they say is true: "You can lead a horse to water, but you can't make it drink."

REPLY: Owners interested in an explanation of other provisions of the documents are encouraged to attend the August 17th Zoom information session with the Board of Directors.

Last Edited: 08/06/2022 at 11:24 AM