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CCOC Decision Summary

#24-13, Frank Kalin v. Normandy Hills Homeowners Association (May 27, 2014) (Panel:  Friedman, Brandes, Zajic).

The homeowner complained that a covenant amendment adopted by his HOA allowing the installation of asphalt roofs on 27 townhomes within his community was not properly adapted and was irrational and inconsistent with the overall architectural appearance of the community.

The townhomes were originally constructed with natural cedar shake roofs, and the Declaration of Covenants stated that all roofs materials used to replace a roof had to be substantially identical in construction, shingle type, texture and color as the materials utilized in the original construction of the dwelling.  The Declaration also stated that it could be amended by “an instrument” signed by at least 75% of the owners.

The current Montgomery County Code stipulates that it is unlawful to require the owner of any building to install any roof material that does not have a Class A fire-resistant rating, or an equivalent rating that indicates the highest level of fire protection.  A natural cedar shake shingle does not qualify as a Class A fire-resistant material.

Homeowners concerned with the lack of fire-resistance of their aging cedar shake roofs  circulated a petition to amend the Declaration by allowing the use of Class A fire resistant roofing materials, including asphalt roofs. The petition was signed by more than 75% of the HOA members and the Board of Directors voted to authorize the filing of the amendment.  The homeowner, a member of the board, disagreed with the amendment and filed a complaint with the CCOC, arguing that a meeting and live vote were required in order to properly amend the Declaration.

The hearing panel determined that the Declaration as it existed prior to the amendment was inconsistent with the County Code and therefore unenforceable to the extent it barred the use of Class A rated roofing materials. Therefore the governing documents were rightfully amended in order to bring them into compliance with the County Code. The hearing panel also determined that although the petition procedure was unusual, it was allowed under the “an instrument” language of the Declaration, and was not inconsistent with any other provision of the Declaration or the Bylaws and therefore the amendment was properly adapted.

Regarding the claim that the new amendment violated the Declaration because it is inconsistent with the overall design of the community as originally constructed, the panel concluded that HOA documents may need to be updated to reflect technological advances as well as new policies, specifically ones that promote public safety. The panel noted that the architectural harmony of a community is not frozen for all times to come and is ultimately to be determined by its members. The hearing panel ruled that the amendment was properly adapted and is not unreasonable or arbitrary and the decision of the HOA to authorize the installation of asphalt shingles on townhomes within its community was affirmed.

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