Written by Don Ratzlaff Tuesday, 10 November 2009 13:27
The city of Hillsboro and a local homeowners association may be heading toward a legal confrontation regarding the authority of the association to amend its declaration of covenants and restrictions.
At the end of its Nov. 3 meeting, the city council authorized its attorney, Dan Baldwin, to write a letter to the Willow Glen homeowners association indicating it is overstepping its authority to make changes.
The city is involved in the discussion as the owner of nine lots within Willow Glen. In recent months the city has discussed the possibility of donating some of those lots for an affordable-housing project under the auspices of Mennonite Housing, based in Wichita.
Paine noted two proposed changes to the covenant that appear to be related to the possible project. One would restrict the size of a home to be built on the property to a minimum of 1,300 square feet; the other is that no home can take longer than six months to construct.
Mennonite Housing had offered floor plans as small as 950 to 1,100 square feet. Also, one option of its program allows the owners to invest “sweat equity” in the project, requiring them to contribute 40 hours of labor per week.
The overriding issue for the city, Paine said, is whether the homeowners have the authority to make any changes.
“The way it’s written, it says it’s the grantor (who has authority), which is still the Kunkels (the subdivision developers) because they still own a lot in that subdivision,” Paine said.
“It also says the declaration of covenants and restrictions is in place for 20 years. That timeframe hasn’t expired either.
“Thirdly, there’s nothing in the declaration of covenants and restrictions that says they can take over and administer the thing when that all happens.”
Melissa Batterton, head of the homeowners association, said she and fellow residents believe they do have the authority to make changes.
“We have read through it and had a lawyer look at it and do not see that all,” Batterton said of the city’s interpretation. “We see that we have complete authority to amend at any time.
“Our feeling is that the city is just trying to keep us from putting any restrictions on the type of housing that can be built there. That’s not quite fair to the people who live there.”
As for the amendments themselves, Batterton acknowledged that they were prompted by the Mennonite Housing discussion.
“When the Mennonite Housing projects came up, we realized there is absolutely nothing in our covenant that dictated what type of houses could be built in our neighborhood,” she said.
“It’s not that we’re opposed to Mennonite Housing––we’re opposed to smaller and not-comparable housing being built,” she added. “The amendments that we’re proposing are to make it where only housing similar to what’s already there could be built. If Mennonite Housing can follow those restrictions, that would be up to them.”
Batterton said the restrictions would still be less restrictive than for other newer subdivisions in the city.
“The amendments are not something that most neighborhoods wouldn’t already have,” Batterton said. “They’re definitely less restrictive than what Carriage Hills or other neighborhoods would have.”
Batterton said Monday she had not yet received communication from the city regarding the issue.