Explanation and Text of Proposed new and Changed Amendments to the SMPOA CC&Rs
There are four (4) proposed amendments to the CC&Rs contained in this ballot. The first three are identical to what was voted on before. A brief description of the purpose of each amendment is included below along with the proposed text of each amendment for your review.
PROPOSED AMENDMENT NO. 1- Attorneys’ Fees
1) Attorneys’ Fees: The first proposed amendment will add an attorneys’ fees provision to ensure that in any lawsuit between the Association and a member, or between members, to enforce the Association’s governing documents, the prevailing party would be awarded its attorneys’ fees by the losing party. Attorneys’ fees provisions are standard for CC&R documents and ensure that if the Association or a homeowner must take legal action to enforce the CC&Rs, the prevailing party can recover its legal costs rather than leaving those expenses unreimbursed. This helps discourage unnecessary disputes and protects the Association’s resources by promoting fairness and accountability in the enforcement of community restrictions.
The Board proposes to add the following new section (s) to the CC&Rs:
(s) Attorneys’ Fees: In the event of any litigation or alternative dispute resolution procedure regarding the rights or obligations of the Association or any member subject to this Declaration (or any other governing documents of the Association) and/or the enforcement of this Declaration or any other governing documents of the Association between the Association and any member and/or between members, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs, as well as any expert witness fees and costs if applicable. The foregoing provision shall also apply to attorneys’ fees and costs incurred to collect upon any judgment entered as a result of such litigation or alternative dispute resolution procedure. Further, in the event the Association engages legal counsel to enforce any violations of the Declaration (or any other governing document of the Association) including, but not limited to, any architectural improvements or modifications performed by a lot/owner without the Association’s required architectural approval, the Association shall be entitled to recover its reasonable attorneys’ fees and costs incurred, whether or not formal legal action is initiated. In the event of any conflict between this provision and Article VIII of the Bylaws, this provision shall be deemed controlling.
PROPOSED AMENDMENT NO. 2- Prohibition of Roof Decks
Prohibition of Roof Decks: The second proposed amendment will prohibit roof decks from being constructed. Although roof decks have historically been prohibited based on the Association’s interpretation of the existing CC&R language, including an express prohibition, as well as describing what types of decks are permitted to be constructed, will assist in the preservation of views within the community and remove any ambiguity with respect to the prohibition of roof decks which exists in the community. In the event this amendment is not approved, roof decks will still be prohibited; however, this amendment will provide full clarity to all members and prospective buyers.
The Board proposes to add the following new section (t) to the CC&Rs:
(t) Prohibition Against Roof Decks: No lot/owner shall construct, install, or maintain any roof deck within any lot. For purposes of this section, a “roof deck” shall mean and refer to any area, platform, or structure designed or used for use/occupancy, recreation, or seating that is located above the roof or upper surface of a dwelling, residence, garage, or other building where a roof would ordinarily exist. This prohibition includes, without limitation, any deck, terrace, or flat roof area improved or used for human occupancy, recreation, or outdoor living space above a structure. Nothing in this section shall be interpreted to prohibit or restrict the construction of free-standing decks, patios, balconies, or terraces located on the ground, on hillside slopes, or attached to the front, side or rear of a residence or dwelling, provided such structures otherwise comply with any architectural requirements of this Declaration, any other governing documents, and applicable building codes.
PROPOSED AMENDMENT NO. 3 (30-Day Minimum Lease Term)
Implementation of a 30-Day Minimum Lease Term Requirement: The third proposed amendment will prohibit short-term leases, i.e. leases under thirty (30) days. This means that all leases must be for a minimum length of thirty (30) days, and all rentals, such as Airbnb, VRBO, and vacation rentals, less than thirty (30) days will be prohibited. That said, owners will still be entitled to rent their properties for longer than thirty (30) days if desired. This amendment is intended to ensure that the Association maintains an owner-occupied character, and limits the high turnover associated with short-term rentals. This is additionally important considering renters are generally less inclined to comply with the Association’s governing documents.
The Board proposes to add the following new section (u) to the CC&Rs:
(u) Minimum Lease Term: No lease or rental of a lot or residence/dwelling shall be permitted to be for a term of less than thirty (30) days. An owner shall only be permitted to rent their lot or residence/dwelling pursuant to a lease that is: (i) in writing; (ii) for a term of at least thirty (30) days; and (iii) subject in all respects to the Association’s governing documents, including, but not limited to, this Declaration.
PROPOSED AMENDMENT NO. 4 - Amendment Approval
Amendment Approval Requirement for Future Amendments to CC&Rs: This amendment changes the voting standard required to amend the CC&Rs going forward. Under the CC&Rs’ current framework, amendments have been approved on a tract-by-tract basis, meaning separate approval is required within each individual tract before an amendment could take effect. This amendment eliminates that tract-by-tract requirement and instead establishes a single, unified voting standard: any future amendment to the CC&Rs will be approved by a majority vote of all lots within the Sunset Mesa Development as a whole, without regard to tract lines, and once approved will apply uniformly to all lots in the Development.
The amendment also confirms that the Declaration's current term, and its automatic ten-year renewal periods, will likewise be governed by this same majority-of-all-lots voting standard rather than by separate tract-by-tract votes. The purpose of this change is to simplify the amendment process, ensure consistent governance across the entire Development, and avoid the administrative burden and potential inconsistency of requiring separate approvals from each tract.
The Board proposes to delete the last paragraph in the “Recitals” section and add the following new section (v) to the CC&Rs.
For reference, the deleted language appears in underlined in red below and the new subsection (v) that will replace it appears below it:
These Amendments and Restatements of Declaration of Establishment of Covenants, Conditions and Restrictions may be amended at any time by a written document signed or approved by a majority of the owners of the lots in the applicable Tract or Tracts. These Amendments and Restatements of Declaration of Establishment of Covenants, Conditions and Restrictions shall remain in effect, as they may be amended from time to time, until January 1,2014, and thereafter shall be automatically extended, as amended from time to time, for successive periods of ten (10) years unless amended by a majority of the owners of lots in the applicable Tract or Tracts as set forth above.
(v) Amendment to the Declaration: Notwithstanding anything to the contrary set forth in this Declaration, this Declaration may be amended by the vote of a majority of all lots within the Sunset Mesa Development subject to this Declaration. Any approved amendment shall be applicable to all lots within the Sunset Mesa Development subject to this Declaration. For reference purposes, an amendment to the Declaration shall not be approved on a Tract-by-Tract basis. This Declaration shall remain in effect, as may be amended from time to time, for a period of fifty (50) years, and thereafter shall be automatically extended for successive periods of ten (10) years unless amended by the vote of a majority of all lots within the Sunset Mesa Development subject to this Declaration.