Memorandum
TO: PVCCE HOA No. 1 Board of Directors
FROM: Michael Martello, Secretary
SUBJECT: Section 19 of our CC&R’s (PARKING)
DATE: June 1, 2023
INTRODUCTION
Roland and I recently attended a neighborhood gathering which sought to begin a dialogue about neighborhood issues, the CC&R’s, perceived problems, the overall “climate” within our HOA, and concerns expressed by many that the tenor of discourse was unnecessarily hostile.
While at the gathering and in subsequent conversations we learned the following: (1) many believed it was a violation of the CC&R’s to park a car in the driveway; (2) some felt that such a ban was unworkable given the changing demographics of our neighborhood (e.g., families with children driving); (3) some felt they would never support a change that would allow cars to park in the driveway; and (4) we learned that many if not most have never read the CC&R’s., which is not surprising—CC&Rs are pretty dry reading!
When Pam and I opened escrow to purchase our home in 2018 I was advised to read the CC&R’s and about parking. I understood Section 19 to mean that the neighborhood did not want me to park a vehicle outside, on the driveway for more than ten (10) straight days within a consecutive 4-week period without the prior approval of the Board. That is what it said, so no problem—We like to park in the garage.
When I was first told about the perceived “no driveway parking” rule I had trouble understanding why? I reviewed Section 19 again, and for what it provides it is pretty clear and well-drafted. Short, concise and uses consistent terms. Section 19 does not say: “no driveway parking”.
You do not need to be a lawyer to understand Section 19, but since I may have been one of the first to say that nowhere in the CC&R’s does it require you to park in your garage and that driveway parking is NOT in violation of the CC&R’s, I will break Section 19 down, sentence by sentence—it is only five (5) sentences contained in three (3) separate paragraphs.
As you read through this, I have highlighted the text of Section 19 in RED. When reviewing this text please look for a declarative statement which says: “residents must (or should) park in their garage”. You will not find it because that statement is not part of our document.
Section 19
PARAGRAPH ONE
Whether operable or inoperable, no trailer, camper, mobile home, commercial vehicle, recreational vehicle, truck, or any other vehicle too large to be accommodated by a resident’s garage shall be parked or stored on any lot in such a manner as to be visible from the street or an adjacent residence. No such vehicle shall be parked on any street or easement within or adjacent to the lots.
The first sentence of this paragraph says that if a vehicle is too large to fit in a resident’s garage it cannot be parked on the lot if visible from the street or an adjacent residence. It would allow the parking of a vehicle, even an inoperable vehicle, boat or camper, or mobile home on a lot as long as that vehicle is not visible from the street or and adjacent lot.
The second sentence says that a vehicle too large for a resident’s garage may not be parked anywhere within the neighborhood. This is problematic because since we do not define“ parking”. So this sentence could apply to a plumber, electrician or landscaper who drives a truck to your house to do some work but can’t park on the street “adjacent to the lots” because his or her vehicle would not “fit” in the garage. The last Paragraph of Section 19 (discussed below) may solve this dilemma.
Clearly not the intent, but that is what it says.
SECOND PARAGRAPH
Residents may park, or have others park, vehicles outside of a garage on the driveway only if the vehicle parked outside the garage is an ordinary passenger vehicle that is of the size that would fit in the garage. Other than with the prior written approval of the Board, such parking shall be for a period not exceeding a duration of ten (10) days in any consecutive four week period.
The first sentence authorizes parking in the driveway. It also limits parking on the driveway, The limit is that parking in the driveway is expressly allowed if the vehicle is an ordinary passenger vehicle which would fit in your garage.
The second sentence of this paragraph limits driveway parking; it allows you to have a vehicle parked in the driveway for 10 days in any consecutive 4-week period. The key words are that you need Board approval if you exceed: “a period” of ten days and need to park for more than 10 days straight. Conclusion: ten days you are good, for 11 days straight you need Board approval.
Because it uses “a period”, it does not mean you are limited to 10 days in a 4-week period. So if you were to park in the driveway for 10 days, and park the 11th day in the garage or on the street, you can then go back to the driveway for another 10 days.
That is what this paragraph provides and as we will see from the next paragraph, yes, street parking is expressly authorized by the CC&R’s.
THIRD PARAGRAPH
Other than with the prior written approval of the Board, no vehicle belonging to a resident, invitee or visitor may be parked on any street within or adjacent to the lots except on a temporary basis for a period not exceeding a duration of ten (10) days in any consecutive four week period.
This paragraph is nearly identical to the second sentence of Paragraph Two, (above) except that it authorizes street parking of “a vehicle belonging to a resident, invitee or visitor.” It defines the temporary basis to be a period not exceeding 10 days.
So you can park on the street for nine days and because this paragraph does not require the vehicle to be a passenger vehicle or one that fits in your garage, this would allow your plumber, electrician and/or landscaper to park on the street. Problematically (as I see it), it could also be interpreted to allow someone to park a commercial vehicle, boat or a camper for a 10-day period, although I think a good argument could be made that the first paragraph of Section 19, above, was intended to preclude such parking.
QUESTIONS
- Was there anything you read that specifically required you to park in the garage? No. The word garage is used 4 times in Section 19 and is used only to define the size of a vehicle and is never used to require parking in the garage.
- Could we approve a change to the CC&Rs to ban parking in the driveway if we allowed exceptions for caregivers, disability concerns, etc.
I would say “NO”, but for the purpose of discussion, let’s say “Probably Not”. Why? The following provision is part of Section 5 of our CC&R’s:
All residences shall be a single family residence with occupation limited to two people per bedroom on a permanent basis. (For this purpose, a permanent basis means residing in the same residence for more than any thirty (30) days out of any twelve-month period.)
This sentence was added to our original CC&Rs in 2009, no doubt in an effort to comply with Title VIII of the Federal Fair Housing Act Amendments of 1988 aimed at preventing discrimination in housing, including discrimination against families with minor children. This standard has expanded over time and both the California (DFEH) and Federal standards today are 2 people per bedroom plus one in the living area, and, in addition, taking into consideration of the size of the home that bigger square footages can accommodate more people than the 2 people plus one standard.
So, for example in an apartment or condo, 2 people per bedroom plus one in the living area is seen as a minimum—but if the bedrooms are really big or the living area is large, the minimum number of allowable residents can increase.
There is a principle in law that you cannot do indirectly what you cannot do directly. I think the addition of this sentence in our 2009 rewrite of the CC&R’s, which was wise, would become a nullity if a family with minor or adult children with cars and driving licenses could not live here without violating the CC&R’s. So a three bedroom home in our HOA would have to allow a minimum of 7 people and we would not be able to limit the number (or violate the law) by limiting the number of cars for those who could otherwise live there and own a car to use to drive to work, shopping, etc.
In addition, California has declared a housing crisis and in addition to new state laws that encourage the conversion of garages to living units, the Governor just signed a bill (AB 2097) which under certain circumstances requires cities and counties to consider eliminating the requirement for garages in new construction because garages increase the cost of providing housing. So while not applicable to our current discussion, I think we can see where the law may be headed.
- 3. Can the Pauma Valley Community Services District (the “CSD””) regulate (enforce) street parking?
No. While a thorough explanation of this “No” could be longer than this memo, consider the following. Our CSD can provide any of the 32 services outlined in California Government Code Section 61100 if we request the service and that additional service is approved by the County and the San Diego County LAFCO (if required). Parking enforcement is not one of the 32 services listed in Section 61100.
In California there are about 3300 Special Districts and of those, 325 are Community Services Districts, like ours. The following is an excerpt from a publication entitled: What’s
So Special about Special Districts?
- “Special districts have corporate powers and tax powers, but rarely the police power. Corporate power is the ability to “do things,” like building public works projects such as parks and sewers. It’s the power to run recreation programs and collect garbage. Tax power is the authority to raise money to pay for these projects and services. Police power is different; it’s the authority to regulate private behavior to accomplish a public goal. Governments that make rules and enforce them use the police power: zoning property, requiring business licenses, or setting speed limits. Special districts rarely have police powers. Instead, they usually build public facilities and provide services.”
In theory the County could authorize such a power over county roads—but our streets are private. We own the streets and when we granted a “nonexclusive easement” to the Roadway Association to repair and maintain the streets, we each reserved to ourselves that same easement.
This last point means that we have the same rights to use the streets as anyone else—including the Roadway Association. Finally, if a government were to regulate parking on the streets, they do so with signs (maybe 1 every 100’, both sides of the street?) which would be unsightly. We have all probably received a parking ticket, but other than for parking too close to a fire hydrant or too close to a corner, we do not expect to get a ticket if there is no sign which says, “no parking” and the curb is not red. A government agency, like our CSD would also need to provide due process (a hearing or some process) for those objecting to the “ticket” issued.
CONCLUSION
I for one am at a loss to explain why one or two of our owners continue to file complaints about their neighbors who park a vehicle in their driveway. One resident has filed complaints against 10 or 12 of his neighbors in the shrillest voice and has convinced others to join his chorus.
If we were able to gain support to update the CC&Rs to include meaningful guidance on building remodels/architectural changes, landscaping, etc., we could also update the parking regs. If that Section (19) is amended, it cannot require garage parking, but could regulate or eliminate the possibility of inoperable vehicles, storage of vehicles, etc.
Michael D. Martello
Secretary to the Board