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CCOC Decision Summary

#744-O, Rand Fishbein v. Avenel Community Association (July 26, 2006) (Panel: McCabe, Negro, Stein)

The homeowner (HO) challenged the decision of his homeowner association (HOA) refusing to allow him to replace his deteriorated cedar shake roof with a deluxe asphalt single roof.The HOA's position was that only cedar shake or slate shingle roofs were permitted in that section of Avenel.

The hearing panel held 4 hearings on the dispute and received voluminous exhibits from both parties.

The evidence showed that two of the HOA's own roof committees had recommended adoption of the deluxe asphalt shingle roof proposed by the HO, and also that the HOA had allowed this material to be used in other sections of the HOA but not in the HO's section.The rules for the HO's section also provided that the homes located on 2-acre lots, as is the HO's own home, could be given greater freedom when making improvements. In addition, the HOA's rules on roof materials did not specify the type of roof material permitted.On the contrary, they stated generally that "roofs [will be constructed] of cedar shakes, slate or other shingles of at least 360 lbs. weight" and the deluxe asphalt shingles proposed by the HO met the 360-pound standard.HOA policy is to require roofs to be replaced with roofs of the same material.

The panel also considered the effect of recent changes to the County Fire Code (Montgomery County Code Section 22-98) which prohibits homeowner associations from forcing homeowners to use a roof material that is not Class A-rated.A slate roof is Class A-rated, but the HO's roof frame is not strong enough to support slate and would require expensive improvements.A cedar shake roof does not meet Class A standards by itself, and in order to make a cedar shake roof meet Class A standards the HO would have to upgrade his roof by adding a fireproof barrier under the shingles.In short, the HO could not install either of the two approved roof materials (wood or slate) without also upgrading his roof system.However, no such upgrade was required for the deluxe asphalt system, which was also Class A-rated.

The panel said that under Maryland law, the decisions of an HOA must be upheld if they have a reasonable basis, are made in good faith, and are not arbitrary.The panel concluded that the HOA's denial of the application to use deluxe asphalt shingles was not reasonable under the circumstances of this dispute and it ordered the HOA to approve the application.

The panel denied both parties' motions for costs or attorney's fees.

[Note:This Decision is currently being appealed to the Circuit Court.]

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