I've never really delved into this issue too much over the years because it has never really affected my Lot, that is to say it did once long ago when NW Community Management was our first HOA. I received one letter from them and quickly put them in their place, never to hear from them or any other subsequent management company, until most recently. So, on that note, I set out to break down the CC&R covering same in literal detail.
CC&R Section 3.11
No Lot, or area in or part of Oak Knoll shall be used or
maintained as a dumping site or depository for rubbish, refuse, trash, garbage
or any other form or type of waste. Any such waste may be temporarily stored
in a location visible from any Street within Oak Knoll for not more than twenty-four (24) hours provided it is stored in a
suitable and sanitary container until such
waste is picked up or removed…such
waste shall be maintained and operated in a safe and sanitary manner and shall not cause or be a form of nuisance to
any resident in Oak Knoll.
When it comes to understanding how to read contractual terms from the eyes of the law, one must recognize the comma "," among other punctuation, that establishes a break between elements or criterion of the section that have to be met in order to either comply or violate the term(s) of the contract.
Here we go...
1st Criteria:
"No Lot, or area in or part of Oak Knoll shall be used or maintained as a dumping site or depository for rubbish, refuse, trash, garbage or any other form or type of waste."
2nd Criteria:
"Any such waste may be temporarily stored in a location visible from any Street within Oak Knoll for not more than twenty-four (24) hours provided it is stored in a suitable and sanitary container until such waste is picked up or removed..."
3rd Criteria:
"...such waste shall be maintained and operated in a safe and sanitary manner and shall not cause or be a form of nuisance to any resident in Oak Knoll."
Three criteria, that is it!
Now to establish each, the following must be met:
1st Criteria:
Common sense dictates what is a "dumping site or depository," and really needs no explanation.
2nd Criteria:
No specific instructions, designation, or specific identification as to what is the one and only, or other, "suitable and sanitary container" that which such "rubbish, refuse, trash, garbage or any other form or type of waste" shall be contained in.
Furthermore, the twenty-four (24) hour period is not designated either; while we have our scheduled recycle pickup date from Waste Management Company, they are not always on time. It is not beyond reason for someone to put their recycling out at 11am the day that it is technically scheduled to be "picked up or removed," or any time thereafter if a Lot Owner calls Waste Management for a pickup or removal. So technically, as the CC&R is written, the moment the Lot Owner places the recycle bins or whatever "suitable and sanitary container" is made plain and visible "from any Street within Oak Knoll" is when the so-called 24 hour clock starts; it is not dependent upon the actual day of service or what Waste Management's schedule is.
On that note, the HOA management company agent or whomever is walking around and submitting a complaint alleging that said "...such waste..." is a "...cause or be a form of nuisance to any resident in Oak Knoll" must prove beyond a preponderance of the evidence that they have established as a matter of fact when a Lot Owner has in effect physically placed said refuse is "...stored in a suitable and sanitary container until such waste is picked up or removed that is ..."temporarily stored in a location visible from any Street within Oak Knoll" such removal.
Bottom line, the recycle bins provided by Waste Management Company are not clearly identified by the CC&Rs.
A black plastic trash bag is as much of "a suitable and sanitary container" as a plastic storage bin, homemade wooden container, so on and so forth.
As such, just because a container that is technically "suitable and sanitary" for the storage of "rubbish, refuse, trash, garbage or any other form or type of waste" is visible from any Street within Oak Knoll, does not mean that actual "rubbish, refuse, trash, garbage or any other form or type of waste" is contained within it. Therefore, the management agent or board representative would need to provide proof that there is such "rubbish, refuse, trash, garbage or any other form or type of waste" within said contained before sending any violation notice of same.
In short, the HOA has been falsely accusing and pissing homeowners off since the year 2000 over the recycle bin issue. And since "garbage bin" is not even mention in the CC&Rs, the January 2016 "Garbage Bin Resolution" is inherently invalid since it fundamentally changes the terms and conditions the CC&Rs without the required vote of the homeowners where 75% approval is necessary in order to make said resolution legitimate as an actual "amendment" to the CC&Rs.
Once again our HOA Board of Directors just continues one effort after another of screwing over the homeowners of this HOA just to get their way.
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