Family loses battles with HOA

By Peter Vieth

Virginia Lawyers Weekly

Published: October 5, 2011

A Loudoun County family has been fighting with their neighborhood’s tightly controlled homeowners association. So far they are losing. Last month the HOA landed a one-two punch with a victory in Loudoun County Circuit court and a favorable decision from the Supreme Court of Virginia.

The family challenged, and lost in the high court, on whether the HOA could unilaterally change its rules.

And their travails continue, thanks to the circuit court ruling. The judge ordered the family to make 17 different modifications to their house after losing a fight with their neighborhood’s community association. The judge has asked for an engineer to review the case and make sure that the changes won’t compromise the integrity of the home.

One last point: The family may owe attorneys’ fees in the circuit court case.

The cases present an unusual scenario. Normally, a developer plans a community, sets up the structure to administer it, and then departs with the profit, said Joseph T. Prendergast, one of the lawyers for Linzie Zinone, owner of the house in the cases. Here, Jack H. Merritt Jr. created the development on original farm property he inherited and he stayed around to run the HOA.

Lee’s Crossing, located a few miles north of Leesburg, was created in 1999 by the Merritt Family Limited Partnership I, with Merritt as general partner. The gently rolling land is graced with scenic views, according to the HOA’s website. Black board fencing along the roads maintains “the rich country estate ambience.”

The development is subject to a declaration of protective covenants recorded in county land records.

“There are restrictive covenants on the property for the preservation of the property values and to maintain the integrity of the equestrian lifestyle,” the HOA’s website reads. “These covenants also serve to contribute to the personal and general health, safety and welfare of residents and for the maintenance of the land and improvements.”

Not everyone at Lee’s Crossing agrees with the beneficial impact of the covenants, however. According to a 2008 item in The Washington Post, residents complained about “capricious” violation notices sent by the HOA architectural review board. Residents also were said to be upset over a dues increase to pay for the HOA’s legal bills.

The Post report and the recent court decisions indicate the Lee’s Crossing HOA is run almost singlehandedly by Merritt. He appointed himself president after annexing additional properties into the development, giving himself a majority vote on the HOA board, according to the Post article.

Merritt also served as chairman of the HOA’s architectural review board in its clash with Zinone over details of her house. Another of the Zinone family’s lawyers, Vernon W. Johnson III of Washington DC, said it appears the Lee’s Crossing HOA is run by Merritt and his wife. “I would characterize it as a dictatorship run by one or two people who impose their will on everybody,” he said.

Under the covenants, property owners must get approval of the architectural review board for any home construction. The ARB approved plans for the Zinone family home in 2006. Zinone had the home built and moved in with her husband and three children.

The HOA then sued Zinone, pointing to 41 alleged violations of her approved building plans. For her part, Zinone claimed in a separate suit that the HOA had perpetuated a “misuse of power” in unilaterally making changes to the community covenants.

In Zinone’s challenge to the HOA’s rulemaking authority, Horne concluded the Virginia Property Owners’ Association Act did not bar the HOA’s unilateral rule changes. With legal support from the Home Builders Association of Virginia, the HOA got the Supreme Court to agree. The Supreme Court opinion is Zinzone v. Lee’s Crossing Homeowners Ass’n (VLW 011-6-105).

Meanwhile, in the HOA’s suit against Zinone, Lee’s Crossing Homeowners’ Ass’n v. Zinone (VLW 011-8-181), Horne heard testimony from time to time over a year and concluded the HOA had made its case on 17 of the 41 alleged architectural violations. Horne ordered Zinone to correct nearly all of the violations, including adding specific windows, shutters, corner stones, pillars, and a decorative arch over one entrance. The court-ordered changes even included adding a third garage door, reducing the size of three windows and eliminating a chimney.

Acknowledging Zinone could have a defense if the court-ordered changes would compromise her home’s structural integrity, Horne said he would appoint a building engineer to serve as a special commissioner. At press time, the parties each had submitted three names for the judge to consider.

Horne spared Zinone on the HOA’s bid to collect assessments for the violations. The HOA had sought to charge Zinone for 41 separate violations. “[T]he Court finds that the various alleged violations amount to one overriding violation, the plaintiff’s failure to comply with the application approved by the ARB to build her house,” Horne wrote. He found the HOA was entitled to a $10 assessment for a period of 90 days, for a total of $900.

Horne directed the parties to schedule a hearing on determination of attorneys’ fees.

Johnson said he could not understand why the HOA was concerned about some of the alleged violations, since they seemed to have little effect on the overall appearance of the home or the neighborhood.

The house is “not an eyesore,” Johnson said. Referring to the omission of two garage windows, he said, “Is that such a big deal?”

“Here’s a young couple, trying to realize the American dream of building their own home,” he said.

Meanwhile, Lee’s Crossing may face a separate skirmish at the Leesburg courthouse.
Records indicate a dispute between the HOA and various other homeowners is now before the circuit court.

“This is an ongoing saga,” said Prendergast.

“It’s a very remarkable process,” added Johnson. “It may be the General Assembly is the only entity with any ability to change the situation, possibly by amending the Virginia Property Owners’ Association Act.”

As it stands now, Johnson said, the statute does not give homeowners at Lee’s Crossing any authority “to control their own destiny and manage their own affairs.”

Neither Merritt nor the attorney for the Lees’ Crossing HOA returned calls for comment.

2 Responses to Family loses battles with HOA

  1. Parash says:

    Phillip’s response clearly demonstrates that he has an in-depth understanding of the legal issues at Lee’s Crossing. So it would have been appropriate if Phillip clarified if he was a member of the HOA or in some other position. This is important as a previous HOA member – I strongly believe and contend that the ARB/HOA’s actions were wrong and in the interest of the HOA members/aka the actual homeowners.
    What one must understand here is that the ARB or the HOA is not paying for building the home, the homeowner is. Second, this is a custom home community and not a STOCK home community – as in – an individual/family purchase land with the intention to build a home of their choice and liking. The role of ARB/HOA in this case is to ensure that there is some uniformity in the type of homes, size, style, appearance, etc. is maintained so that the overall appearance of the community is nice and uniform and cohesive. The role of ARB is not to police the community. If the Developer wanted to build home that 100% complied with his taste and met his expectations, then he should build the homes that way like the Toll Brothers and he shouldn’t be promoting this as a custom home community.
    Whenever a custom home or an addition is being built – there will always be variations to account for some decisions that could be improvised and some where the decision does not make sense and needs reconsideration and costs. The key question is – does a homeowner need to seek an ARB change approval for every possible variation – or should those change requests be directed to where there is significant deviation from what was originally planned and approved. Also notable in this case is that the homeowner and the ARB/aka Developer took about a year for the initial plan approval. So as a custom homeowner who is undergoing building a home – is there an expectation – that they should stop construction mid-process – make a change request to the ARB/Developer – wait until they have resolved it and then re-start construction – it is simply not possible and the costs overruns would be exorbitant. I can say this with conviction as I also built a custom home in another community. The other key question is – did the variations/changes have a significant impact in the overall appearance, marketability of the community. Remember this is a custom home community. Also an additional question needs to be asked is that whether the other homeowners – view the variations significant and degrade to their community or do they support these deviations. At the end of the day – it’s should be decision of the collective HOA members.
    In this case, the ARB/Developer decided to initiate unilateral action under the guise of the HOA (again as he had over 51% control of votes) and initiated legal action. BUT AS DEVELOPER – HE DID NOT HAVE TO PAY A DIME FOR THE LEGAL ACTIONS INITIATED BY HIM – and the total cost was borne by the HOA Dues paying homeowners like me and the Zinone.

  2. Phillip says:

    It is sad how this article misrepresents the actual facts. First, Mrs. Zinone is an attorney, and she was represented by her dad…Joe Prendergast (mentioned above).
    This couple did indeed have their plans approved by the ARB….and then they unilaterally decided to build a house with features that were different than the plans. The 17 items Judge Horne ordered them to correct was in order to bring the home back to what they had originally agreed to build. The Zinone’s had been given many opportunities to appear before the BOD when it was observed they were building not according to there plans, and they flatly refused.
    The community was about to be turned over to the homeowners when it was discovered, about a month before the turnover, a Prendergast led meeting held at the Zinones home( but with invitations to only a select few homeowners vs the entire HOA members),with plans to take over the HOA and then immediately change the covenants in a way to intentionally cause sever financial harm to the declarant.
    The true problems in the community were caused by a small fraction of HOA members who then tried to influence others, ultimately leading to the legal issues.

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