Skip to main content

Commission on Common Ownership Communities

Minutes of the Monthly Meeting

February 3, 2016

(Approved)

 
The monthly meeting of the Commission on Common Ownership Communities was called to order at 7:10 pm on February 3, 2016, by Chairperson Rand H. Fishbein.
 
Present: Commissioners Fishbein, Winegar, Coyle, Cromwell, Ethier, Don Weinstein, Fine, Zajic
 
Absent: Commissioners Brandes, Fonoroff.
 
Also attending: Associate County Attorney Walter Wilson; CCOC Staff Eric Friedman, Marsha Carter and Peter Drymalski; Dallas Valley, Osadur Ozkanian, David Epstein.
 
            1. MINUTES.  The minutes of the December, 2015 meeting were approved as drafted (Cromwell abstaining).  There was no meeting in January, 2016, due to lack of a quorum.
 
            2. COMMUNITY FORUM:
           
            Mr. Ozkanian requested the status of the decision in his case, the hearing having been held over 45 days ago.  Mr. Wilson and Mr. Drymalski will check.
 
            Mr. Ozkanian asked if residents could file “class action” complaints under one name or if they had to file individual complaints.  Mr. Wilson said unit owners or residents must file complaints in their own names and pay the filing fees.  However, the cases could be consolidated by the Commission so they could proceed together.  Mr. Drymalski pointed out that the Maryland Code on the “practice of law” prohibited a layperson from representing any other person in a judicial or quasi-judicial proceeding (such as the CCOC).  Mr. Wilson also stated that several unit owners or residents could file a joint complaint if they all were represented by the same attorney.
 
            3. NEW CASES PRESENTED FOR REVIEW:
 
            The Commission voted unanimously to accept jurisdiction of #43-15, Democracy Adventures LLC v. Midtown Bethesda North Condominium, and to appoint Commissioners Fine and Winegar to the hearing panel.  The hearing is set for March 17.  Later in the meeting, however, as a result of the Commission’s discussion of the recent decision in Boveja v. West Spring Condominium (see below), the Commission voted unanimously to modify its ruling.  The unit is owned by a corporation, Democracy Adventures LLC, not by the complainants; it was Mr. Wilson’s opinion that the corporation could not be represented by individuals, but must be represented by an attorney.  The Commission voted to require the complainants to obtain an attorney within 30 days if the corporation wished to proceed with the case.
 
            4. REQUESTS TO THE COMMISSION:
 
            None.
 
            5. OFFICERS’ REPORTS
 
            Dr. Fishbein informed the Commission that he had solicited a vote by email on a motion to state the Commission’s formal response to Bill 50-15 at the Council’s public hearing on the bill on January 21, 2016.  He went on to state that the email vote must be ratified in an open meeting.  Ms. Winegar made the following motion, which Mr. Fine seconded: 
            To oppose Bill 50-15, in its entirety, as introduced in the Montgomery
            County Council on December 8, 2015, and request the County Council to establish a working group to address Commission
            concerns, with said working group to include at least 3 members of
            the Commission, and with the goal of the working group to provide
            recommendations to the County Executive and the County Council
            prior to seeking any statutory changes to Chapter 10B.
 
            Dr. Fishbein reported that Commissioners Fishbein, Winegar, Coyle, Cromwell, Don Weinstein, David Weinstein, Fonoroff, Brandes and Zajic voted by email to support the motion.  Commission Ethier abstained from voting by email
 
            The Commission then voted on the motion in open meeting.  The Commission’s vote was unanimous in favor of the proposed motion.  (Ms. Ethier abstained from voting.)
 
            Mr. Wilson advised that the email addresses could be deleted from the copies of the email votes.
 
            Dr. Fishbein also reported that as of February 2, 2016, Commissioner David Weinstein had resigned.
 
DECISIONS AND ORDERS ISSUED; OTHER LITIGATION:
 
            Mr. Drymalski reported on the recent decision in Boveja v. West Spring Condominium, #83-14.  The hearing panel had originally issued a formal decision in Mr. Boveja’s favor, finding that the Condominium had violated its governing documents by failing to rule on his architectural application within the 60-day deadline.  (The application requested permission to replace a window overlooking his balcony with a door opening onto the balcony.)  The panel made its approval conditional upon a favorable engineering report that the balcony was structurally safe and that opening the wall would not pose any risk to the wall.  However, after the decision was issued, the Condominium filed a motion for reconsideration, raising for the first time the issue that Mr. Boveja was not the unit owner and therefore had no standing to pursue the complaint.  The unit was owned by a trust and the trustees were Mrs. Boveja and her son.  The hearing panel agreed, revoked its first decision, and dismissed the case.
 
            6. COUNTY ATTORNEY'S REPORT:
 
            Mr. Wilson discussed Bill 52-15.  The Bill amends the County’s Administrative Procedures Act to allow administrative tribunals, such as the CCOC, to issue “summary decisions” without an evidentiary hearing  if there are no significant facts in the dispute.  The CCOC already has this authority.  Mr. Wilson stated that the effect of Bill 52-15 is to “formalize’ the summary decision process by requiring motions for summary decisions to be made at least 20 days before a hearing, and the answer to such a motion must be filed at least 10 days before the hearing.
 
            Mr. Wilson noted that a summary decision is not necessarily the same as a summary dismissal.  A dismissal without prejudice does not have the legal effect of a judgment, but a dismissal with prejudice has the same effect as a summary judgment.
 
            [Staff note: Bill 52-15 was passed February 2 and signed February 6, 2016.]
 
            7. STAFF REPORTS:
 
            Mr. Drymalski reported that the deadline for applying for professional vacancies on the Commission expired January 27, 2016, and that he had asked for the applications to be sent to the CCOC as soon as possible.  He had also notified the County Executive that Mr. Weinstein, a resident member, had resigned and asked that the County advertise for a replacement.
 
            Mr. Wilson stated that the Commission’s interviewing committee could include commissioners whose current terms were expiring and could be renewed.
 
            Ms. Winegar and Ms. Ethier volunteered to serve on the Interviewing Committee.
 
            Ms. Winegar stated for the record that there were far too many vacancies on the Commission.  All of the professional seats (7) were either vacant already or about to become so, and her own term had expired and was up for renewal.  She noted that former Vice-Chairperson Arthur Dubin has not been replaced although his term expired a year ago, and that although the vacancy was re-advertised last summer, the Executive has not forwarded any of the applications for it.  Now there was a vacant resident position and the terms of two more resident members had expired and were subject to renewal.   In short, 10 positions on the Commission were either vacant or up for renewal.  She noted that there are now so few commissioners that it is very difficult to ensure a quorum to do business.
 
            Mr. Wilson advised that under County law, sitting commissioners served until they were replaced, or for up to six months after their terms expired, whichever came first.
 
            Mr. Zajic moved that the Commission write to the County Executive to ask for his support to fill all Commission seats promptly.  The motion passed unanimously.  Dr. Fishbein will draft the letter.
 
            8. COMMITTEE REPORTS:
 
            Ms. Winegar reported on the mandatory training program, which was released on January 1, 2016, in spite of a formal request from the Commission that release be delayed until the program could be reviewed and tested, and until the County could prepare a program to implement the various training and recordkeeping requirements.  She presented a plan “Necessary Steps to Implement the CCOC Plan for Training of Members of governing Bodies of Common  Ownership Communities,” an “Instructor Registration Form.”  The Commission voted unanimously to adopt the “Necessary Steps.”  Commissioners will have until February 22, 2016, to offer comments on the Instructor Registration Form.  All forms submitted for approval will be reviewed by the Education Committee.
 
            Ms. Winegar also requested that the staff obtain monthly reports from the Department of Technology Services showing the names of all persons who received Certificates of Completion on the training class.
 
            Mr. Fine reported on several bills pending in the General Assembly, including those regulating parking stickers in common ownership communities and the installation of electric vehicle charging stations.  He also noted that Prince George’s County had adopted major changes to its own Commission on Common Ownership Communities,  Bill 58-2016.  The Prince George’s agency does not have dispute resolution authority, but the bill does require mandatory mediation of all complaints.  Even more significantly, the bill appears to require that if a resident files a complaint with the agency, all court proceedings, including collections actions, are stayed pending disposition of the complaint.
 
            Ms. Winegar emphasized that any Commission classes or annual forums be held in suitable county facilities, meaning the facility contained audio-visual equipment, and that very few of them did.  Mr. Zajic suggested that the Commission consider holding classes at Leisure World, which did have such facilities available.  Mr. Fine said he could supply suitable equipment when necessary.
 
            9. OLD BUSINESS:
 
            Ms. Ethier and Mr. Fine noted that they are working on the 30 oldest CCOC cases with a goal of making a plan to have them either closed or sent for hearings as soon as possible.
 
            10. NEW BUSINESS:
           
            Ms. Winegar stated that the Department of Housing and Community Affairs (DHCA) had recently sent out a major survey to common ownership communities which has generated considerable confusion and hostility.  DHCA did not consult with the CCOC before sending the survey and the CCOC was not aware of it until after it was sent.  There were really two surveys:  the first, which CCOC wanted, gathered information about community budgets and amenities; the second, which DHCA wanted, asked communities to list all rental properties and their owners.  The survey was sent to board presidents and not always to association managers. There was also a very short time allowed for completion with the threat of legal action if the date was not met.  Most complaints involved the rental survey, which was felt to be burdensome, and the fact that the survey was not sent to those who had ready access to the information (the managers) but to board officers. 
 
            Ms. Winegar moved that the CCOC write to DHCA to ask it to extend the completion deadline until April 30, and to allow the responses to be signed by managers.  The Commission unanimously adopted this motion.  Ms. Winegar will draft the letter and forward it to the staff.
 
            Ms. Winegar also discussed her meeting with Zoning and DHCA representatives on the issue of rental licensing and in-home businesses.  The issue is that when any homeowners receive County approval to have an accessory apartment or an in-home business, they believe no further approval is necessary.  Zoning does not approve accessory rental units, DHCA does, and she thinks DHCA should include a warning on its application forms that DHCA approval is conditioned upon the homeowner showing that his HOA has also approved the unit, or that no approval is necessary.  Zoning, however, regulates most in-home businesses, and the Health and Human Services regulates daycare providers.  Ms. Ethier offered to draft suitable language that the Commission can request the relevant agencies to use.
 
            Staff offered former Chairperson Liz Molloy’s Guidelines for Hearing Panels.  The Commissioner deferred action on the proposed Guidelines and referred them to the Policy and Planning Committee to be considered as part of that Committee’s proposals for improvements to the CCOC hearing process.  Anyone who had comments on the matter should send them to Ms. Ethier.
 
            The Commission voted to adjourn at 10:10pm
 
            11. NEXT MEETING:  The next meeting will be Wednesday,  March 2, and the following meeting will be Wednesday, April 6, 2016.
 
 
 
 

Go Top