Declaration and Bylaws Preamble
Q: I question having the ACL Building and Environmental Code precede Board approved Policies. Board approved policies should trump other regulatory language that is not recorded upon which the Board has authority to approve, an action current policy includes language in the guidelines for paths and greenway areas that involve recommendations from Building/Maintenance and Conservation that require Board approval. I think the order of Items 6 and 7 should be reversed.
A: The Building Code is adopted by the Board. While the AECC might review applications, the terms of the Building Code are approved by the Board and are a written set of guidelines and requirements that owners must follow as established by the Board. Because both the Board policies and the Building Code are adopted by the Board, the order or priority probably doesn’t matter too much between these two. If there is a conflict between a Board policy and the Building Code, the Board can correct this by changing one or the other, or both. Since the Building Code is included in two sections of the Declaration and it pertains to all 2743 Lots, while the Board Policy only pertains to the nine Board of Directors, the Legal Commission recommends keeping the proposed rank at this time.
Declaration Article II Section 3
Q: I do not like the additional language providing that a vote of at least 2/3 vote of the Board of Directors for the purchase of Reserved Properties. Why was it added?
A: The previous language states that the Association may acquire additional Reserved Properties when deemed to be in the best interests of the Association. The previous language does not describe how the Association may acquire additional Reserved Properties. The proposed language adds that additional Reserved Property may be acquired by a two-thirds (⅔) affirmative vote of the Board of Directors.
At the September 23rd Town Hall meeting, Owners asked that the proposed language be removed, and the document go back to original language. The Legal Commission decided at their October 6th meeting to remove the proposed language and go back to the original language.
Declaration Article III Section 3
Q: Why change the maximum building height from 30 to 35’?
A: AECC proposed this language to comply with Jo Daviess county Building code
Declaration Article III Section 5
Q: Structures are not mentioned in the 100’ setback from the lake. Why not?
A: Dwellings, Dwelling Accessory Buildings, Garages, attached decks and sanitary systems are not allowed within the 100’ setback. The definition od Dwelling is any building located on any Lot or an individual living unit in a Multifamily Structure intended for the shelter and housing of a single family. The definition of Dwelling Accessory Building is a subordinate building or a portion of a Dwelling, the use of which is incidental to the Dwelling and customary in connection with that use.
We feel that a structure is covered within these definitions.
Declaration Article IX Section 6c
Q: I do not understand the reference to Tom Hanks
A: This language was added by legal counsel as a provision concerning the rule against perpetuities, which is an old legal rule providing that restrictions against real estate cannot last forever. Basically what the rule requires is that any document containing restrictions on real estate must name a specific person and those restrictions shall last until 21 years after the death of the descendants of that person that are living at the time the document takes effect. In an effort to name an easily identifiable, hopefully non-controversial, living individual, I have listed the actor Tom Hanks.
Declaration Article V Section 4
Q: There are many individuals who never marry, should they have the same rights as a married couple?
A: Couples need to be listed as married on the deed of the Lot or show proof of marriage with a marriage certificate in order to receive the rights and easements of enjoyment of the Common Properties. The Association can not know the status of couples who do not have a legal document stating that they are in fact a couple and should share in the enjoyment of the Common Properties and therefore can not extend that privilege without those documents.
Declaration Article III Section 13b
Q: What is the purpose of this paragraph? Is it similar to Article VII Section 1c?
A: This Section serves a different purpose then Article VII, Section 1(c). This paragraph relates to the Association entering into agreements with owners to deviate from the requirements of this Article, which include not only particular building requirements but also property use requirements/rules as well. This would involve the Association and the particular owner entering into some type of mutually agreed upon agreement to deviate from a particular provision set forth in this Article. Article VII, Section 1(c) relates to the AECC granting variances to the terms of the Declaration when considering applications submitted to the AECC by owners pursuant to Article VII. So, that Section only deals with variances being granted as a result of a hardship when an owner submits an application to make some type of change/improvement to the owner’s lot.
Declaration Article III Section 11
Q: I thought wells were not allowed on individual lots?
A: Wells are covered in Article 8 of the Declaration. There are some lots that do not have service from the water utility so a well is allowed.
Declaration Article VI Section 7 – now deleted
Q: Was the quorum requirement deleted simply to reduce the required number of votes and thus reduce the majority number to pass such as an assessment? A quorum of 20% is 549 owners. A majority of those would be 276 votes – not a lot to pass an assessment – I think a quorum should be retained.
A: Sections 4 & 5 require a majority vote of total Voting Members. Having a quorum of 20% would suggest that passage only needs a majority of Voting Members actually voting rather than of all Voting Members. Because of this, Legal counsel deleted this section
Declaration Article IV Section 14
Q: Leasing Lots? Why do we need this in our declaration?
A: Within the definition of Lot is “any numbered parcel of land, or any separately identified condominium unit”, so we need language to address leasing a Lot.
Declaration Article VII Section 3 and Bylaws Article XI Section 12
Q: Both sections discuss the makeup of the AECC, the language is similar, but not exact, why not make it the same?
A: The language in both documents has been changed so they are the same
Bylaws Article V Section 2
Q: Paragraph 2, Why has “shall” been changed to “may”. What other way was considered for determining a Board member? Appointment? If so, why not say so? Is this to avoid the involvement of the Nominating Committee? Or does this allow for a vacancy to remedy until a vote of the members is cast?
A: This is language out of CICAA 160/1-25 (e)
Bylaws Article VII Section 6
Q: The last sentence should read: Voting Members at a Regular, Annual, or Special Meeting….
A: This is stated properly, regular Annual or Special Meeting – The term “regular” goes with the reference to the annual meeting indicating that these are the annual meetings of members that occur on a regular basis each year. There is only one annual meeting of members held each year on a regular basis, so all other meetings of members held during the year (if any others are actually held) would be special meetings.
Bylaws Article VIII Section 9
Q: Why was quorum changed from an affirmative five votes to as simple majority? This happened for a vote of the budget about 7-8 years ago and the Board only had five members present. This should be changed back to original language and not allow for the possibility of three Board members to make a decision for the Association.
A: This was discussed at the Board of Directors meeting on September 19, 2020 and the Board recommended to the Legal commission to use the original language and keep a decision of the Board to five affirmative votes.
Bylaws Article IX Section 2
Q: The last sentence from the stricken Section 6 reads: The Vote shall be taken pursuant to Article VII. However, Article VII is now Article VI. I’d recommend leaving this sentence at the end of Section 2 and Changing to VI.
A: We have added this sentence as it pertains to a vote and Article VI deals with votes on all matters.
DECLARATION, ARTICLE VI, SECTION 7:
Q: I think the quorum should be retained and applied to Sections 4 and 5 for consistency in dealing with special assessments and budget matters. A quorum of 20 percent (20%) is minimal representation as it is.
A: Section 7 previously stated that quorum for meetings of the voting members under Sections 4 and 5 was 20% of the voting members eligible to vote. This was removed as unnecessary since Article XII, Section 6 of the amended bylaws already provides that quorum at meetings of voting members is 20%.
The language in Section 4 is consistent with Section 1-45(c) of the CICAA, which refers to “majority of the total votes of the members” and the language in Section 5 is consistent with Section 1-45(f) of the CICAA, which refers to “approval of a simple majority of the total members”. Both mean that the required approval would be voting members with 50.01% of the total votes in the Association.
DECLARATION, ARTICLE VI, SECTION 9(B) AND (C):
Q: What is the real objective here in the long term plans for the Association? What financial considerations were given to writing this kind of activity into the covenants?
A: Section 9 allows the Association to charge a late fee for delinquencies and to utilize all statutory options the Association has available under the law to collect unpaid assessments. This is new language added by Legal counsel with provisions typically included within a section outlining the associations rights related to unpaid assessments. The Association might not use all of these options but including them into the Declaration at least gives them the option if necessary.
ARTICLE VII, SECTION 1, A, SENTENCE 1:
Q: Why has language been changed to allow additions, alterations, or changes to the Common Properties and Reserved Properties to be made by the Board? Why won’t property owners have a voice in this? Such changes could be major capital expenditures in which property owners deserve a voice through AECC. I do not agree that this clause should be added to the covenants.
A: This language was added in response to a question from the Legal Commission regarding whether the AECC or the Board has jurisdiction over the Common Properties and Reserved Properties. The intent of the first sentence is to prohibit owners from making changes, additions, alterations, improvements, etc. to the Common Properties and Reserved Properties without approval of the AECC. The additional language was added to clarify that the Board may make additions, alterations and changes to these properties and would not have to get AECC approval to do so. The AECC approval language in this sentence is applicable to owners, not the Board
ARTICLE VII, SECTION 1, E, REVIEW OF AECC ACTION BY BOARD:
Q: With the makeup of AECC consisting of a majority of members to be Board members, how fair to a property owner may an appeal be? I have always thought the effort should have been made to edit the clauses giving AECC the power to review subject to Board approval. If this had been done, AECC would have remained a Commission the same as all other Standing Commissions and as it had been for forty years. I am aware that some believe that AECC’s having to go to the Board for approval takes too much time. AECC has met fairly regularly for years on the first Saturday of the month. Getting approval from the Board would only cause a delay of two weeks because there is time from when AECC meets to get the issue on the agenda for the next Board meeting. We operated for many years with that being the case. After reviewing the clauses in this Declaration, we still have more than one instance in the language that requires Board approval. In addition, there is language in the Building Code that requires Board approval, for example, lot combinations.
A: When Keay and Costello were retained as legal counsel in 2017, they mentioned the Not for Profit Act and the difference between a committee and commission. When we discussed AECC and the makeup, the members of the AECC at the time, including builders and architects felt that waiting two weeks for the BOD to approve the decisions of the AECC would be detrimental to the contractors and builders. It is for this reason that it was decided to make AECC a committee and put a majority of the members as Board members. I was not aware of a time when the AECC decisions were brought to the BOD for approval prior to 2017.
ARTICLE VII, SECTION 3, SENTENCE 3:
Q: Sentence 3 additional sentence, “In the event the Board is unable to appoint an architect, licensed engineer or building contractor to the AECC, the Association may retain one or more of the same from time to time to consult and advise the AECC in the performance of its duties.” Basically, this sentence expresses the same meaning as Sentence 6 that has been in the language. Sentence 6 states, “The AECC, subject to the Board’s approval, may engage such inspectors or agents to assist it in the performance of its duties and responsibilities.” Why is sentence 3 necessary?
A: The legal commission feels the new language is different and prefers to keep the proposed language as is at this time
ARTICLE VIII, SECTION 1, SENTENCE 4:
Q: Since we are billed monthly, I believe the word “monthly” should be inserted in Sentence 4, “Said availability, consumption and usage rates may be billed monthly, quarterly, semiannually, or annually at the option of the serving public utility.”
A: The word monthly will be inserted as requested.
ARTICLE III, “GENERAL RESTRICTIONS” Energy Policy Statement
Q: This indicates it was intended to be inserted into the covenants at that point. However, this has not occurred, so will a correction be made prior to recording these documents or will it be recorded as is as an amendment. Will this forever be an amendment or will it become a part of the covenants document?
A: Unless and until the General Assembly modifies or amends the current statute, the policy is adopted and amended by the board. It is a policy that is fully within the board’s purview, but which the General Assembly stated must be included as part of the Association’s Declaration. The revised policy would need to take the form of an amendment to the Declaration, but it is an amendment adopted by the board, not the membership.
DECLARTAION, ARTICLE VI, SECTION 9b
Q: Why do we want to bid to take possession of a foreclosed vacant lot?
A: When we changed to Keay and Costello for legal counsel, they made many suggestions to the process for foreclosures. One was that the Association could go to the court house for the sheriff’s sale for the lots prior to the auction at the Association.
We started this in 2017 by having a representative from Keay and Costello attend the sheriff sale, but since then, either Megan or myself have attended to save money. The process is simply going to the courthouse with Sheriff Turner, where he will list the lots available at the sale and ask what our bid is on the lots. Our bid is typically around the amount of the assessment. Once in our time of doing this has there been another person at the sheriff sale that outbid us on a lot.
By doing the auction this way, when ACL has their auction, we own the lots, so we don’t need to coordinate with the sheriff when they are available to come to the auction. This also eliminates a step in our auction since we own the lot making things easier for the new owner. We have also been able to eliminate having legal counsel out here for the ACL lot auction, Megan prepares the paperwork required for the new owner to record their deed and also prepares for legal counsel the ptax form.
DECLARATION, ARTICLE VI SEC 13
Q: Is there any merit to put Senior Exemption in the Definitions to further fine the meaning?
A: Legal Commission did not feel it was necessary to add Senior Exemption in the Definitions because it would be more of a reference than a definition. We have not used definitions for a place to put references.
BYLAWS, ARTICLE V SEC 1, FIRST SENTANCE
Q: In my opinion the word MANAGED is a strong word. I feel that we have hired a general manager to manage the affairs of the association.
A: The Legal Commission feels that the word MANAGED is appropriate. In Bylaws Article VII Powers and Duties of the Board of Directors Section 1 states. The Board of Directors shall exercise for the Association all powers, duties and authority vested in the Association by law, including but not limited to the provisions of CICAA, as amended and in effect from time to time, or by the Restated Covenants, or by the Bylaws, as amended and in effect from time to time, except for such powers, duties, and authority reserved by law or by the Restated Covenants to the Voting Members
BYLAWS, ARTICLE VII, SECTION N
Q: Regarding calling a special meeting, why was the number required for Voting Members to call a special meeting raised from 125 to 20 percent (20%) of the total votes in the Association? Raising it to 549 makes it very difficult for property owners to call a special meeting when they have issues they feel need to be addressed.
- Attorney Comments: The number of voting members required to call a special meeting of voting members was revised to 20% consistent with the reference in Section 1-40(b)(3) of the CICAA and to match the change in Article XII, Section 6 of the bylaws to the quorum requirement for voting member meetings to 20%. Sections 1-40(b)(1) and 1-40(b)(3) of the CICAA would allow the Association to have a lower quorum requirement and a lower threshold for the number of voting members required to call a special meeting of owners. However, these two provisions should be consistent so the Association doesn’t have a situation, for example, where only 125 owners need to sign a petition to call a special meeting of owners but then several hundred more owners would be necessary to achieve a quorum at that special meeting.
A: While the Legal commission does agree that consistency is important in the documents, they also felt that a difference in calling a special meeting (125) and a quorum (20%) at that meeting would be fine. They agree that raising the requirement to call a special meeting from 125 to approximately 549 could be difficult for owners, so they agree to change back to the original language requiring 125 Voting Members to call a special meeting.
Q: The legal commission received a request to allow certain temporary structures on vacant lots and was asked to consider changing the proposed language that prohibits all uses on vacant lots –
A: The Legal Commission thinks it would be too difficult to manage. It would start out with a campfire, then a tent/camper, later a picnic table, etc. they worry about safety – longer dry grass, dry conditions, non-owners, trespassers, making a campfire. They also feel that different regulations for different vacant lots would be confusing for owners and lead to owners doing whatever they wanted.
Revenue: Grass mowing/hay baling – make about $6,000. Would ruin the equipment if ran over a fire ring which we would want for containing a fire.
Q: Watching the Town Hall Meeting last night, I kept seeing instances where sections in the bylaws were removed because they were already listed in the declaration. This is going to sound stupid, but what is the difference between the declarations and the bylaws?
A: The Declaration covers the rights and obligations of the homeowners’ Association to its members and the Association. The contents often include: property-use restrictions; clearly defines maintenance obligations for the homeowners’ association and individual members; mechanisms for rule enforcement and dispute resolution; lender protection provisions; assessment obligations and insurance obligations.
The Covenants or Declaration cover the “what” of the homeowners’ association. The Bylaws cover the “how.” The proposed Amended and Restated Bylaws for Apple Canyon Lake Property Owners’ Association establishes the structure of day-to-day governance of the homeowners’ association. The Bylaws are operational guidelines, dealing with organizational and administrative aspects of the homeowners’ community. The Bylaws include language on: frequency of homeowners’ association board elections; process for nominating and electing new board members; number of members that serve at one time; length of board member service terms; meeting frequency and quorum requirements; and, duties and responsibilities of board members.