The sandbags in Charlotte Kelley’s backyard have blocked more than runoff.
Montgomery County Circuit Court Judge Terrence J. McGann ruled in a summary judgement in April that The Orchards Homeowners Association in Gaithersburg had no legal right to collect fines from Kelley, who built sandbag retaining walls without The Orchard’s permission.
After the court makes a final ruling Tuesday or Wednesday, other Maryland residents who have been fined could use the decision to argue that their homeowners associations have no right to fine them in similar circumstances, according to Kelley’s attorney, Peter A. Greenburg of Rockville-based Greenburg, Spence and Taylor.
The decision alone does not set case law, which is limited to appellate court decisions, according to Rockville-based attorney Thomas Schild, who works in real estate and zoning law.
The Orchards’ declaration of covenants does not give the HOA the right to impose fines, so it does not have that power, McGann wrote April 8. Amending its declaration with a bylaw did not give The Orchards the power to impose fines, he stated.
A smaller percentage of homeowners must approve a bylaw than a change to a declaration, giving bylaws less power than declarations and articles, Schild said. To change a declaration, a homeowners association must gather the approval of at least 75 percent of residents, he said, while a bylaw does not need even a majority vote.
“The power to fine is punitive and inherently comes from a state, or a city, or a municipality and it is done originally in the areas of criminal offenses,” he said during a March 29 hearing. “That is where the state has the ability to fine people.”
The Orchards had repaid Kelley all of her fines, which totaled more than $2,000, by May, Greenburg said.
In 2004, soon after Kelley moved in, she noticed that water flowing from her neighbors’ yards was causing two trees near her house to uproot, so she built a wall of sandbags filled with wet concrete in her backyard. She did not have an application approved by the HOA for an architectural change. She filed an application, but only after she built the wall, McGann said during the hearing.
She added a second similar retaining wall in 2007, again before she had an application approved.
The homeowners association decided in November 2009 to fine Kelley every month following if she did not take the wall down. The first month the fine was $100, the second month it was $200, and every month following the fine went up to $300.
She hopes the court’s decision will help her neighbors who have been fined to also get their money back.
“I am entitled to send a letter to everyone in my community and say, ‘Hey, I got my money back, how about you?” she said Friday.
The courts usually impose a three-year statute of limitations, so residents could only get money paid in the last three years, Greenburg said.
In 2007, The Orchards collected about $8,750 in fines; in 2008, the balance was at negative $600; in 2009, the HOA collected $100, and in 2010, $3,450.
Calls placed to two representatives of The Orchards to clarify the varying balances were not returned.
In 2007, the fines represented about 5 percent of the HOA’s total annual income most of which comes from assessments.
Greenburg said he will be interested to see if other residents of The Orchards sue.
jbondeson@gazette.net
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