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 friendswith 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 kidsnow 13, 11 and 5use 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 wasif 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’tand if a hearing scheduled for Sept. 24 doesn’t go their waythey 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 courtall 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 peoplein our particular situation, five members of the board of directorswho 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 fitor 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 associationspartly 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 perspectiveexclusively 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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The Rooneys were required to put down mulch in their garden to cover fabric, weed it in the off-season and add flowering plants on the edges to soften its appearance. They were told to plant “tall shrubbery and decorative plantings” that screen the garden from street view. They say they complied with all of that.
But starting in 2013, they received complaints that the garden had grown too big, objects had been strung from trees without approval from the HOA’s architectural board, and maintenance of weeds and dead plants had been lacking.
Half of the Rooneys’ garden is obscured from street view by a tight cluster of trees, mostly Leyland Cyprus trees that had been planted before they moved in. They hate those trees. Melissa says she was asked at a neighborhood board meeting two years ago to plant more. She refused.
“I’m not putting in giant needle trees that are gonna hide my garden completely from view,” Melissa says. “That’s my garden. I want people to walk by.”
The Rooneys say they compromised by planting tall ornamental grasses and a Camellia tree. That seemed to sate the HOA until this past July, when the Rooneys were warned to either maintain their plants, which the association thought did not sufficiently shield the garden from street view, or remove the garden altogether by Aug. 7.
Four days after the deadline, the Rooneys received a letter from the Raleigh-based Talis Management, which works with the Fairfield Community Association. The couple was informed that there would be a hearing to determine if they’re in violation of the neighborhood’s covenants.
If they are, the HOA can levy fines to cudgel them into compliance, in accordance with the North Carolina Planned Community Act of 1998. Under that statute, a fine not to exceed $100 per day may be imposed for the violation. That amount could add up quickly.
“If they start imposing $100 a day, then the onus is on us to sue them or to spend money on legal defense,” Melissa says. “If we don’t do that, they can put a lien on our house, and that can proceed into foreclosure hearings.”
Members of the Fairfield Community Association board did not want to be quoted for this story, though the HOA did issue a statement in the form of an email from Talis Management. It reads, in part: “5 years ago, the Fairfield Homeowners Association approved a front yard garden with the condition that a visual screen be implemented. The conditional approval was agreed to by the homeowner. … To date, the screening has not been installed consistent with the conditional approval.We hope to resolve this issue amicably, if possible, at the due process hearing.”
Melissa Rooney won’t be there; if she were, the hearing wouldn’t be amicable. She was a member of the board in 2006 but resigned before her term ended, in protest of a vote that occurred while she was out of town on vacation. She and Mike both ran unsuccessfully for board positions last year.
There are “personal” issues, Mike says. “It clearly needs to be me that goes to that hearing.”
Concord attorney Zac Moretz is unfamiliar with the Rooneys’ case, but he’s an expert on HOA laws. His North Carolina HOA Law Blog addresses common issues between homeowners and HOAs, ranging from restrictive covenants to the collection of delinquent dues to unkempt lawns.
Moretz admits he’s biased in favor of HOAs, since he’s most often working on their behalf. But on one point, he sympathizes with the Rooneys: The Planned Community Act is too vague.
He compares it unfavorably to its progenitor, the Uniform Condominium Act, created in 1980 by the Uniform Law Commission, a national nonprofit that set out to give clarity and consistency to state laws regarding condos.
“The North Carolina Legislature took the [UCA] in 1999 and said, ‘Well, let’s do one for subdivisions,’” he says. “But it wasn’t a uniform act that had been promulgated by this expert body. The Legislature took the condo act and just kind of took a bunch of stuff out of it they couldn’t agree on.”
If it’s any consolation to the Rooneys, Moretz says that, in his experience, homeowners often have an advantage in the courtroom, if things get that far.
He also has some advice for aggrieved homeowners who feel they’ve been treated unfairly by HOA boards: “The Planned Community Act allows homeowners to circulate a petition. They only have to get 10 percent of the homeowners to sign a petition to demand a special meeting to remove one or all of the board members.”
If that happens, it would likely be Melissa leading the charge. She’s the scrappier half of the Rooney couple. (Mike, who is firmer but quieter, sometimes leans back and sighs with exhaustion when she goes off at length.)
Mike says he’s thinking about moving the family away from Fairfield when their oldest kid graduates from Jordan High School in four years.
But Melissa has her own terms for pulling out.
“When I leave, it will be voluntarily,” she says. “I won’t be bullied out.”
This article appeared in print with the headline “Midnight in the garden”
