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HomeMy WebLinkAbout2006-6897 Civil (2) ALLENVIEW HOMEOWNERS : IN THE COURT OF COMMON PLEAS OF ASSOCIATION, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : AND : : DUANE E. HERMAN AND : SUSAN M. HERMAN, : INTERVENORS : : V. : : DAVID HAWKINS AND : MARCIA HAMMERSLEY, : DEFENDANTS : 06-6897 CIVIL TERM IN RE: OPINION AND ORDER OF COURT Bayley, J., October 24, 2008:-- Allenview is a planned residential development with approximately 260 residences in Cumberland County. The development is subject to recorded covenants and restrictions. Article VII of the covenants and restrictions with a date of December 27, 1976, provides: ARCHITECTURAL CONTROL COMMITTEE Section 1. Review by Committee. No building, fence, wall or other structure shall be commenced, erected or maintained upon The Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said 06-6897 CIVIL TERM plans and specifications have been submitted to it, or in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with. Defendants, David A. Hawkins and Marcia R. Hammersley, own Lot 37 in April 13, 2005 Allenview on which they live in the residence at 2302 Foxfire Circle. On , defendants filed a request for architectural approval of a 28’ x 32’ garage addition, with October 25, one car door, attached to the rear of the existing garage structure. On 2005 , approval was granted by the Board of Directors for the Allenview Homeowners March 13, 2006 Association. On , defendants sought architectural approval for a 56’ x 32’ garage/workshop addition, with either three 8’ single car entry doors or one 8’ single car door and one 16’ double car door, to be attached to the rear of the existing March 28, 2006 garage structure. On , the Board of Directors approved that project. Both approvals required that the addition have siding and shingles that matched the existing structure as closely as possible. That structure has brick and vinyl siding. 1 Defendants never started either of these projects. June 16, 2006 On , defendants sought architectural approval to construct a 40’ x 60’ detached workshop/storage building behind their house and garage. Unlike their existing structure, this pole building was to have steel siding. The building was to have __________ 1 May 11, 2006 On , defendant sought architectural approval for a 32’ x 12’ addition to the front left side of the home. An attached plan showed the addition with the garage May 23, 2006 approved in March, 2006. On , the Board of Directors approved that project. Defendants never started this project. -2- 06-6897 CIVIL TERM June 27, 2006 one walk in service door and one 16’ split sliding door. On , the Board of Directors denied the request, stating that “[t]he proposed change violates the Declaration of Covenants and Restrictions and the proposed structure is not in keeping with the architectural harmony of our community.” In a letter received by the July 14, 2006 Architectural Control Committee on , defendants resubmitted the same July plan for the 40’ x 60’ detached workshop/storage building with steel siding. On 25, 2006 , the Board of Directors again denied the request for the same reason as before. August 22, 2006 On , without any further written submissions, the Board of Directors did the following: Carl Poffenberger made a motion to allow Mr. Hawkins to construct a 32 x 56 building that looks like an earlier drawing provided; the motion 2 was seconded by Rob Grohman, the motion passed. August 29, 2006 In a follow-up letter dated , the Board of Directors wrote to defendants: This letter is written in response to your request to build an outbuilding on your lot at 2302 Foxfire Circle. The Allenview Homeowners Association Board of Directors a 32-foot by 56-foot structure approved your request to build in the to the rear and to location agreed to at the homeowners meeting (i.e., the left of your lot). The building should be constructed in the same appearance as the previously requested larger building, with no garage doors but a large “barn-type” sliding or pull out door . . . . (Emphasis added). __________ 2 Eight out of nine Board members were present. -3- 06-6897 CIVIL TERM Defendants considered this as an approval, downsized to 32’ x 66’, of the detached steel sided pole building with no garage doors but a large “barn-type” sliding August 29, 2006 or pull out door. On , defendants entered into a contract with Hanover Builders, with a $3,000 plus deposit, to construct at 32’ x 56’ detached pole building early October, 2006 with steel siding on their property. In , Hanover Builders did the site preparation by grading and placing gravel on the footprint for the building. On October 24, 2006 , the minutes of the Board of Directors meeting state: 32 Residents appeared before the Board with concerns about the Board approval of the construction of a free standing building on the property of David Hawkins 2302 Foxfire. Jack Rieman of 314 Wister Circle and Duane Herman of 2304 Foxfire were the spokespersons for the residents. Discussion was had about the conformity of the building. It was discussed that the residents felt that the Board did not have the authority to approve the building. Rob Grohman alluded to the C&R’s that govern the area in question which is according to the community plot plan is Section 1 Stage B. The C&R’s dated 12/27/76 is what the Board felt allowed the decision. It was when one of the residents pointed out that what they thought the Board approved was not what the members of the Board felt they Members of the Board realized that there was some approved. confusion between Mr. Hawkins and the board approval. Rob Grohman read the minutes from the August 22, 2006 meeting and felt that what was approved was not what was being built. Jeffrey Johnson made a motion to have Mr. Hawkins stop construction immediately of the said outbuilding and to rescind any and all approvals from the Board related to 2302 Foxfire until Mr. Hawkins approaches the ACC with new plans, the motion was seconded by Rob Grohman, the motion passed. Daniel Simpson abstained. -4- 06-6897 CIVIL TERM 3 (Emphasis added.) October 25, 2006 The Board wrote the following letter to defendants on : This letter will confirm the action taken by the Allenview Homeowners’ Association at its October 24 meeting. As you and your wife heard last night, the Board voted: (1) to rescind all of its prior approvals for modification or additions to your home and (2) to request that you cease any and all construction pending a complete review of your multiple construction requests. Specifically, your request to construct a workshop/storage building/outbuilding to the rear of your present home as approved in the letter of August 29, 2006 is now DENIED. Further, the previous approval letters of June 3, 2006 (regarding the 32’ x 12’ addition to the front left side of your property and a 12’ addition to the right rear), the April 2, 2006 letter (regarding a 56’ x 23’ garage addition to the rear of your property) and the October 29, 2005 letter (regarding a 28’ x 23’ garage addition) are RESCINDED and your requests for approval of those projects has now been DENIED. The Board’s vote resulted from its belief that your representations to the Board have not been entirely factual. Until there is clarity about exactly what you propose to build and in what way, the board asks that you refrain from making any modifications or additions to your home. It is now believed that your requests as presented are not in keeping with the architectural harmony of our community. You are invited to submit one proposal, on the required form, describing in detail all of the changes that you propose to make to your existing home. Please be specific about size, location, materials, and method of construction. Information on the form concerning the approval or disapproval of your neighbors will be required by the Board. The Architectural Control Committee next meets on November 20, 2006. Please submit your request directly to the Association Manager in sufficient time to be considered at the next ACC meeting. The Allenview Homeowners’ Association takes this action only with respect to compliance with the rules and regulations of the Association. Compliance with any federal, state, or local requirements is always the responsibility of the homeowner. October 25, 2006 On the same day, , Hanover Builders delivered to defendants’ __________ 3 One position on the Board was vacant. Seven out of eight Board members were -5- 06-6897 CIVIL TERM property the material to be used for the construction of the steel sided pole building. The project was to start that date, but based on the rescission of all approvals that had been granted by the Allenview Board of Directors, defendants halted the project. On October 28, 2006 , defendants wrote the following letter to the Board of Directors: th In consideration of the actions of the Board of Directors on October 24, 2006, we have temporarily complied with what we consider an unjustified th and unfounded motion. We are willing to retract our June 16, 2006 th request, approved August 29, 2006, provided we are compensated for losses incurred as a result of complying with this motion. Expenses to date: $670 – Site Preparation $12330 – Materials $309 – Building Permit Anticipated expenses: $670 – Removal of gravel and re-grading of site $1000 (estimated) – Removal of materials $1000 (estimated) – Reclaim site $1000 (estimated) – legal fees Total: $16979 A written answer with payment in full of all expenses to date and 50% of rd anticipated expenses is required by 12pm Friday, November 3, 2006. The balance of anticipated expenses is due upon contraction of services. rd This offer expires on November 3, 2006 at 12pm. The Board of Directors did not respond to the letter. Defendants had Hanover November 21, 2006 Builders start construction of the pole building on , which was November 30, 2006 completed. On , the Allenview Homeowners Association instituted this suit. The complaint avers that “[m]aterials that were subsequently delivered to the present. -6- 06-6897 CIVIL TERM Property reflected that the structure was to be a steel construction; while the primary residence on the Property is constructed of brick and vinyl siding.” Plaintiff seeks an order directing defendants to remove any construction on the property for which approval was not then currently valid and to require defendants to return their property January 29, 2007 to a condition that existed before the start of construction. On , Duane E. Herman and Susan M. Herman, who own and live in a residence at 2304 Foxfire Circle which is adjacent to defendants’ property, were permitted to intervene as October 16, 2008 plaintiffs. A hearing was conducted on . At the hearing, Robert Grohman, a member of the Board of Directors of Allenview, testified that at the August 26, 2006, meeting, the Board discussed taking the attached garage approved in the March submission and changing it to a detached building. He did not vote for a steel sided building that was not in harmony with the th development. Board member Deanna Zwanziger testified that at the August 26 meeting, the Board was trying to figure out how to appease Hawkins and also the Allenview Homeowners. They agreed to take the previously attached garage as shown in the March plan and allow it to be detached at a size of 32’ x 50’. She testified that the Board never approved a steel pole building. Board member Carl Poffenberger th testified that at the August 26 meeting, they got Hawkins to reduce the size of the steel pole building from 40’ x 60’ to 32’ x 56’. Poffenberger made a motion that resulted in the Board approval for what he believed was a steel pole building. He acknowledged that after the controversy about the building arose, he told Robert -7- 06-6897 CIVIL TERM Grohman that he believed that the Board had only approved a brick sided building. Poffenberger testified that Grohman had caught him off guard when he was groggy during his recovery from a Menear’s disease. Board member Debra Wallet testified that she did not approve of a steel sided building because it is not in harmony with the th development. At the August 26 meeting, she voted against Poffenberger’s motion because she did not know what the words to construct a 32’ x 56’ building “that looks like an earlier drawing provided” meant. DISCUSSION Article IX, Section 3 of the Allenview covenants and restrictions allows for Buck enforcement at law or in equity. Land use restrictions must be strictly construed. Hill Falls Company v. Press, sub 791 A.2d 392 (Pa. Super. 2002). In the case judice, on March 13, 2006, the Board of Directors approved an attached garage measuring 56’ x 32’ with either three 8’ single car entry doors or one 8’ single car door and one 16’ double car door. On August 22, 2006, the motion passed by the Board allowed defendants “to construct a 32’ x 56’ building that looks like an earlier drawing provided.” Based on that motion, the Board, on August 29, 2006, notified defendants that it had approved their “request to build a 32’ x 56’ structure . . . to the rear and to the left of your lot. The building should be constructed in the same appearance as the previously requested larger building, with no garage doors but a large ‘barn-type’ sliding or pull out door.” The only previously requested larger building with a sliding door was defendants’ request on June 16, 2006 to build a 40’ x 60’ detached -8- 06-6897 CIVIL TERM th workshop/storage building. Based on the Boards August 29 letter to Hawkins he had reason to believe that it had approved construction of the same building that it had previously rejected on June 27, 2006, but with the size reduced to 32’ x 56’, and with a large “barn-type” sliding or pull out door as depicted in the previous request. Sloppy work by the Board created a problem which it did not recognize until October 24, 2006, when, based upon a motion that what was being built was not what the Board approved, it rescinded all prior approvals and ordered defendants to stop construction. The Board was forced to act because the record supports a finding that the building that defendants were about to erect was not what the Board approved and was not in keeping with the architectural harmony of the Allenview Development. Nevertheless, defendants forged ahead and erected the building for which they did not then have approval. The building as erected is at a size and configuration approved by the Board. There is no reasonable basis for the Board to reconsider that approval. The siding does not closely match the existing residence and attached garage as required. Therefore, we will enter an order requiring the detached structure either be removed and the site returned to its original condition, or the structure should be modified with siding that does match the existing residence and attached garage as closely as 4 possible. That is what the Board of Directors approved. __________ 4 Because plaintiff has obtained relief there is no basis for an award of counsel fees to defendants. -9- 06-6897 CIVIL TERM ORDER OF COURT IT IS ORDERED THAT AND NOW, this day of October, 2008, within six months of this date, the detached structure on defendants’ property, shall be removed and the property returned to its original condition unless within that time frame the structure has -10- 06-6897 CIVIL TERM been modified with siding that matches the existing residence and attached garage as closely as possible. By the Court, Edgar B. Bayley, J. John R. Zonarich, Esquire John B. Zonarich, Esquire For Plaintiff and Intervenors Jerome J. McDonald, Esquire For Defendants :sal -11- ALLENVIEW HOMEOWNERS : IN THE COURT OF COMMON PLEAS OF ASSOCIATION, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : AND : : DUANE E. HERMAN AND : SUSAN M. HERMAN, : INTERVENORS : : V. : : DAVID HAWKINS AND : MARCIA HAMMERSLEY, : DEFENDANTS : 06-6897 CIVIL TERM ORDER OF COURT IT IS ORDERED THAT AND NOW, this day of October, 2008, within six months of this date, the detached structure on defendants’ property, shall be removed and the property returned to its original condition unless within that time frame the structure has been modified with siding that matches the existing residence and attached garage as closely as possible. By the Court, Edgar B. Bayley, J. John R. Zonarich, Esquire John B. Zonarich, Esquire For Plaintiff and Intervenors Jerome J. McDonald, Esquire For Defendants :sal