4/30/2008

Is ‘gotcha’ the priority here?
Commentary by Bob Lassahn

For the uninitiated it should be explained that the present Ocean Pines Association (OPA) Architectural Review Committee (ARC), initially established as the Environmental Controls Committee (ECC) within the Ocean Pines Declaration of Restrictions (DRs), is comprised of volunteers appointed by the Ocean Pines Board of Directors. The Compliance, Permits and Inspections (CPI) Department is a staff function under the direction of the OPA General Manager and acts as an enforcement arm regarding the various regulations for properties in the subdivision.

The OPA board is presently seeking a declaratory judgment from the courts to determine if CPI inspectors have the authority to enter onto the property of an OPA homeowner, uninvited and unannounced, to pursue investigation of a violation of the OPA regulations. In my opinion this would mean that a passerby could not adequately see the supposed violation to conclude its validity, such as being able to see the rear license tag on a car or trailer to determine if the registration is current (the very type of violation that instigated pursuit of the court ruling).

I consider this akin to asking just how far OPA can take this issue and I for one sincerely hope the judgment would be against unfettered access, but such things are never a certainty. It is an issue I consider ripe for abuse.

What I would prefer to see is the board considering how far they want to push the issue of access and exploring the collective conscience of OPA (as represented by the directors) regarding just how heavy handed OPA intends to become with the membership. They should be answering the question: “because one legally can, does it translate to what one might want to do?”

I am taken aback that six members of the board voted to pursue this option without significant discussion (at least in public session) as to the potential ramifications, for both OPA as an entity and the individual members of OPA on the receiving end of the action. A legal opinion is unnecessary to finding your own conscience unless perhaps already planning to push the legal envelope.

If decided by a board majority after careful deliberation that this right of access is of some great consequence to OPA’s overall well-being and ability to address violations, the board could then seek the answer to the burning question. But simply testing the waters involves the danger of “because we can…we therefore will!” If the ruling is in favor of uninhibited access why should CPI refrain from using it?

I applaud Marty Clarke for voting “No” to seeking the judgment and I also applaud his refusal on numerous occasions to “rubber stamp” an ARC request to “forward a case to legal,” apparently without the board’s consideration (at least not in public meetings) of whether all other possible avenues to remedy the situation were considered and what OPA might want to accomplish with the case. He has consistently been shut down when he starts asking about particulars on these cases.

While some cases would certainly need to move toward a legal resolution, each must be considered on its own merit and the board must carefully weigh the final outcome OPA is seeking. Among the current sitting board members, it would seem Mr. Clarke stands alone in understanding the true magnitude of that act.

The ramifications of this “forward for legal action” became acutely obvious with a recent case. In short OPA won and the ruling handed down by the court requires a homeowner to tear down a porch he added to his house. “Guesstimates at the cost of this penalty range from $20,000 to $40,000. OPA repeatedly refused to grant approval of a variance based upon the percentage of coverage on his lot, something for which variances have been granted in somewhat similar instances. The homeowner, who insinuates a bit of a personal conflict with an ARC member, complied with county permitting and inspection requirements, but failing approval by ARC he forged ahead. Some might say he deserves what he got, while others might view the remedy as a bit extreme.

The OPA board certainly appeared taken aback at the outcome and the words “unintended consequences” crept into the discussion. Even so, some board members remain adamant that they have no control or influence over the findings of the ARC and therefore attempted to absolve themselves of any responsibility.

I would say nothing is further from the truth. The board has the authority to appoint and remove the ARC members, only the board has the authority to declare a “continuing violation” stripping the members voting rights and use of OPA amenities and finally, only the board may authorize pursuit of a legal remedy in court. These are certainly influences and controls. If the board is unhappy with the ARC’s findings they may remove the members, refuse to accept the ARC’s findings for a declaration of continuing violation and refuse to seek legal action whenever they disagree with what ARC has decided.

The ARC is a committee of three appointed members and there is no requirement that they should be an OPA property owner. In the pecking order I cannot equate three appointed members who serve at the pleasure of the board holding unquestionable power over seven directors elected by the membership. And the board must ultimately move forward any ARC request for legal action. ARC is helpless without the board to back up its decisions.

Beyond a statement in the DRs giving “final authority” for submitted plans, which I personally perceive more as a move to keep contractors with “connections” from attempting to circumvent the ARC’s findings, there does not appear to be a written mandate in OPA documents directing the board to rubber stamp whatever the ARC sends forward. What would the ARC do if the board denied a “forward to legal” request and sent it back stating they wanted additional steps taken in an effort to find a suitable resolution? Would the OPA attorney step in and tell the board it does not have the authority? Would the ARC take the board to court? And is it really in OPA’s best interest that the only oversight of ARC findings should exist in the courts?

At present there is the OPA board saying they have no sway over the ARC, while at the same time seeking a ruling that could grant CPI (the ARC enforcement arm) access to every OPA member’s property without limitation to sniff out violations that cannot be seen from a public area. This all comes at a time where the General Manager is boasting about a reduction in the ARC/CPI case backlog. In other words things are moving faster. But, again I worry because speed does not always connote to doing things right.

An enforcement arm given uninhibited access to any property, an all-powerful appointed oversight committee and a mandate to move rapidly does not sound like a healthy mix to me. But then I envision an OPA that is actually concerned with creating a welcoming, unified community, where people want to keep things nice, enjoy their home and live in harmony. What am I thinking? Apparently there are some who consider s “gotcha” on an ARC violation should rank higher on the list of priorities.