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Does North Carolina give homeowners associations too much power?



The dented-up, desert-sand-colored Toyota Sienna in the driveway of Melissa and Michael ­­­­Rooney's South Durham home is spectacularly adorned with cheerful graffiti depicting flowers, stars, hearts, birds and trees in bright hues of red, blue, yellow and green. There are messages in support of the UNC Tar Heels and some ornamental squiggles, all created by the couple's kids and their friends—with some help from Mom.

"We had all this leftover house paint," Melissa explains, as if the only thing to do with leftover paint is let your kids—now 13, 11 and 5—use it to decorate the minivan.

The Rooneys aren't afraid to appear unconventional. Melissa and Mike met in grad school. Both have PhDs in chemistry and work mostly from home. They figured they'd fit right in to what appeared to be a progressive, laid-back Fairfield neighborhood when they moved here in 2002, after four years in Melbourne, Australia.

But that didn't happen. Instead, over the last several years, the Rooneys have squabbled with the Fairfield Community Association over all manner of things: an application to install solar panels facing the road (the Rooneys eventually gave up); a complaint about political signs in their front yard (the Rooneys declared victory); grass height (point: Association); and chalk drawings by Melissa and kids on the driveway (point: Rooneys).

Their latest battle is also a First World problem.

In 2010 the Rooneys planted a garden on one side of their front yard. The garden is currently about 30 feet long and 12 feet wide. About 20 feet of that is dedicated to growing tomatoes, okra, eggplants, peppers, kale, cabbage, Swiss chard, spinach and broccoli, with varying degrees of success.

"It is principally a fruit-and-vegetable garden," Mike says. "It is in our side yard, which previously was—if you want to call it a lawn ..."

"It was more poison ivy than lawn," Melissa finishes.

The HOA doesn't consider the garden an improvement, however. Citing poor maintenance and a failure to adhere to the terms of the conditional approval five years ago, the Fairfield Association is demanding they remove it. If they don't—and if a hearing scheduled for Sept. 24 doesn't go their way—they could be looking at hundreds of dollars in fines. After that, liens and eventually foreclosure.

The Rooneys aren't budging. They say they're willing to take the case to court—all the way to the U.S. Supreme Court, Melissa insists (to Mike's amusement).

From their perspective, this is about more than just a garden. Rather, it's about the exorbitant power North Carolina grants to homeowners associations.

"You have a very select group of people—in our particular situation, five members of the board of directors—who can hijack what is meant to be a community-based benefit and twist it to their own particular desires, preferences and thoughts on what a neighborhood should be," Mike says. "I'm tired of being singled out for violations in an arbitrary and capricious manner."

Bring up the subject of homeowners associations to some folks, and you'll hear familiar accounts of neighborhood Gladys Kravitzes, busybodies with nothing better to do than to cruise their street looking for violations to report.

Not everyone hates his or her HOA, of course. Often, it's just a matter of finding the right fit—or at least figuring out if the tradeoff between the services provided and the fees charged is worth it, or if a particular HOA is more concerned with keeping cookie-cutter homes looking uniform than building a sense of community.

Orange County Commissioner Mark Dorosin, a civil rights attorney at UNC-Chapel Hill, had just such an experience. The HOA of his Spring Valley neighborhood in Carrboro made him remove a fraternity bench in his front yard. He'd built it as a welcoming gesture.

Dorosin says he didn't raise much of a stink about it because, after all, HOA board members are his neighbors, and he'd rather live in peace. But he's naturally skeptical of homeowners associations—partly because they tend to promote homogeneity, and partly because of how they usually originate.

"I have a lot of concerns about how they operate," says Dorosin. "They are, in some ways, very small-scale, very localized governments. But the residents have none of the protections that we have when we're dealing with actual governments."

Dorosin points out that local government rules regarding open spaces and storm water runoff present a real incentive for developers to create HOAs.

"At the time that the covenants are put into place and the homeowners association is established, there's usually just one entity, one person, that owns all the lots: the developer," says Dorosin. "And so, the rules are written from that perspective—exclusively focused on whatever the developer's interests are and focusing on what that developer perceives will enhance property values."

It usually takes a supermajority vote to change these rules, which means HOA policy ultimately tilts power to the developer, not the residents. And many HOAs run on a complaint-driven model; their role is to enforce "what can be some very draconian rules" whenever one neighbor complains about another, Dorosin says.

The Rooneys say that's exactly what's happening in Fairfield.

The conditions the HOA imposed on their garden in 2010 have "been the bane of our existence," Melissa says. They change without warning, she adds, subject to the whims of the HOA's board.

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