HomeMy WebLinkAboutComplaint with Exhibits filed by SchmidSeptember 27, 2012
Via electronic mail
(original via hand delivery)
aconn @carmel.in.Qov
Ms. Angie Conn
Planning Administrator
City of Carmel
Carmel Plan Commission
RE: Docket No. 12090014 ADLS Amend: Woodgate Subdivision Wall Along
146`h Street
Dear Ms. Conn:
My husband and I live at 1460 Queensborough Drive in the Woodgate subdivision in
Carmel. We are writing to oppose Lyndon Craig Stiff's application for approval to construct an
8 -foot concrete wall along the backs of the 11 lots in Woodgate that abut 146th Street. The
reasons are many, but are best explained in the attached complaint we filed in the Hamilton
County Superior Court. A summary of the reasons why this concrete wall should be disallowed
is as follows.
1. The existing wood fence along 146th Street is encroaching in various areas both on
the right of way and the platted drainage and utility easement of the eleven (11)
Woodgate lots which abut 146th Street. In fact, as Mr Stiff is well aware, Weihe
Engineers performed a survey of the location of the fence in 2010. This survey was
done at the request of the then "board" of the association. Exhibit 4 to the Complaint
is a copy of that survey and it reveals that the fence "is located 3.81 feet South to 1.8
feet North (varies) of the Northerly lines of Lots Numbered 101, 102, 103 and Lots
Numbered 125 through 130 in Woodgate, Section Five and Lots Numbered 82 and 83
in Woodgate, Section 4..." (See Exhibit 4 to Complaint, "Note 3 "). The "Northerly
line" is actually the line which separates the right of way from the platted drainage
and utility easement for each of the subject eleven lots.
2. If Mr. Stiff proposes to install an 8 -foot concrete fence in the same location as the
existing wood fence, then this concrete fence will likewise encroach on both the right
of way and the drainage and utility easement in the same manner that the wood fence
now does.
3. Both the original and the amended Covenants and Declarations for Woodgate prohibit
the installation of any "permanent or other structure" in the drainage and utility
easements on any lot in Woodgate. (See Exhibits 1 and 2 to the Complaint).
4. Mr. Stiff purports to represent the Woodgate Homeowners Association, Inc as the
"President" of its `Board of Directors ". However, that entity was administratively
dissolved in April 1999 and the name is now owned by a different subdivision in
Fishers,. Indiana. A copy of the Indiana Secretary of State's records in this regard are
attached. Thus, any bylaws previously applicable to the Woodgate Homeowners
Association, Inc (which bylaws govern the actions of the Woodgate board) are no
longer valid and Mr. Stiff cannot and is not acting on behalf of this entity.
5. Finally, as the attached complaint reveals, the individuals, including Mr. Stiff, who
are purporting to act on behalf of and with the authority of the association in
attempting to construct an 8 -foot concrete wall are, in fact, in violation of the
covenants and the bylaws they purport to be acting under. We have asked the
Hamilton County Superior Court for a declaratory judgment and an injunction.
Thank you for your attention to this matter. Should you have any questions or wish to
discuss this further, please feel free to contact me. My office number is (317) 639 -5454, cell
phone (317) 490 -6279 or I can be reached by email at mschmid @silegal.com.
Sincerely,
Anton C. Schmid and Mary F Schmi
1460 Queensborough Drive
Carmel, IN 46033
MFS/
Enclosure
STATE OF INDIANA ) IN THE HAMILTON COUNTY SUPERIOR COURT 2
COUNTY OF HAMILTON) CAUSE NO.2 9 D D 2- 1 209 PL 9q 79
ANTON C. SCHMID and
MARY F. SCHMID, Husband and Wife,
Plaintiffs,
v.
WOODGATE HOMEOWNERS
ASSOCIATION, d/b /a
WOODGAIL HOMEOWNERS
ASSOCIATION, INC.
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT
AND REQUEST FOR PERMANENT INJUNCTIVE RELIEF
Anton C. Schmid and Mary F. Schmid, husband and wife, ( "the Schmids "), for their
cause of action against the Woodgate Homeowners Association d/b /a Woodgate Homeowners
Association, Inc. ( "the WHOA "), allege and state as follows:
I.
Introduction
Plaintiffs seek a declaratory judgment from the Court that the Woodgate Homeowners
Association is not authorized to nor may it collect and use dues paid by the members of the
WHOA for the repair, maintenance or replacement of that certain fence located along the
approximate 11 lots that border the Woodgate subdivision and 146th Street because this fence is
not within any Common Area or Landscape Easement of the subdivision In addition, Plaintiffs
are asking the Court to permanently enjoin the Woodgate Homeowners Association from
increasing the annual dues or imposing any special assessment for the purpose of raising funds
1
from the members of the Association for the repair, maintenance or replacement of the disputed
fence.
II
Parties
1. On or about May 30, 1997, the Schmids purchased real estate located in the
Woodgate subdivision in Carmel, Hamilton County, Indiana from the owner and developer of
the Woodgate subdivision, Langston Construction Co. The Schmids' real estate is described as
Lot 37 in Section Two, Woodgate subdivision; the common address of which is 1460
Queensborough Drive, Carmel, Hamilton County, Indiana.
2. The Woodgate subdivision is comprised of seven (7) platted sections of
residential lots on which single family homes sit. Each section of Woodgate has a final, recorded
plat and a set of recorded Covenants and Restrictions applicable to each such section of the
subdivision all of which were recorded between the years 1986 and 1992. Attached hereto and
marked as Exhibit 1 are all of the recorded plats and their accompanying recorded Covenants and
Restrictions for each of the seven (7) sections of Woodgate.
3. Pursuant to Ind. Code §23 -17 -4, et seq. on or about July 12, 1995, the WHOA
was incorporated as an Indiana not - for -profit corporation. However, the WHOA was
administratively dissolved on April 3, 1999.
4. To date, the WHOA has not sought to be nor has it been reinstated as an active
Indiana not - for - profit corporation Moreover, according to the records of the Indiana Secretary
of State, as of August of 1999, the name "Woodgate Homeowners Association, Inc." is now
registered to and used by a different subdivision located in Fishers, Indiana
2
5. At present, there are three persons who purport to serve on the Board of Directors
of the WHOA. Two of those purported Board members are Craig Stiff, purported Board
President, and James Laverdiere, purported Board Treasurer.
6. Messrs Stiff and Laverdiere are also lot owners in the Woodgate subdivision.
Upon information and belief, Mr Stiff owns and lives at 1362 Woodpond Roundabout which is
Lot 125 in Section Five of the Woodgate subdivision. Mr Stiffs lot is one of approximately
eleven (11) lots in Sections Four and Five of the Woodgate subdivision which abut the right -of-
way of 146th Street at the northern boundary of each lot. These 11 lots are hereinafter referred to
as "the 146th Street Lots" and the owners of each such lot are hereinafter referred to as "the 146th
Street Lot Owners ".
III
Recorded Plats, Covenants and Restrictions,
Declaration of Amended Covenants and Restrictions
and Bylaws for Woodgate Subdivision
7. As alleged in paragraph 1 of this Complaint, the Schmids' lot is part of Section
Two of Woodgate. The final plat for Woodgate, Section Two along with certain Covenants and
Restrictions applicable to Section Two were recorded on or about September 9, 1986 as
Instrument No. 8619403 in the office of the Recorder of Hamilton County, Indiana. (See,
Exhibit 1).
8. The 146`h Street Lots are all located in Sections Four and Five of the Woodgate
subdivision. The final plat for Section Four, along with certain Covenants and Restrictions
applicable to Section Four was recorded on or about September 25, 1989 as Instrument No.
8921148 in the office of the Recorder of Hamilton County, Indiana. The final plat for Section
Five, along with certain Covenants and Restrictions applicable to Section Five was recorded on
3
or about September 11, 1990 as Instrument No. 9022513 in the office of the Recorder of
Hamilton County, Indiana. (See, Exhibit 1).
9. On or about January 28, 1998, the Declaration of Amended Covenants and
Restrictions for the Woodgate subdivision (hereinafter the "Amended Covenants and
Restrictions ") was recorded as Instrument No. 9809804137 in the office of the Recorder of
Hamilton County, Indiana. A true and complete copy of the Amended Covenants and
Restrictions is attached hereto and marked as Exhibit "2 ".
10. The Amended Covenants and Restrictions serve as a supplement to the original
Covenants and Restrictions applicable to each of the seven (7) sections of Woodgate (as reflected
in Exhibit 1 to this Complaint) and, with limited exceptions, are also binding on and serve as
additional restrictive covenants for each of the lots within Woodgate. The Amended Covenants
and Restrictions include various additional restrictions on each Woodgate lot owner's use of
their respective lots.
11. In addition, the Amended Covenants and Restrictions granted to the WHOA the
authority to begin assessing and collecting yearly dues against each lot owner and to make the
requirement to pay yearly dues a servitude against nearly all of the then owners of lots within
Woodgate and all owners of Woodgate lots who took title thereafter. The initial annual dues
were $20.00.
12. Pursuant to the Amended Covenants and Restrictions, the following terms were
defined:
"Articles - the Art icles of Incorporation of the Woodgate Homeowners
Association, Inc."
"Assessments and Dues - all sums lawfully assessed against Members of the
Corporation or as declared by this Declaration, the Articles or the Bylaws."
"Bylaws — the Code of Bylaws of the Woodgate Homeowners' Association, Inc."
"Common Areas — areas and easements defined as part of the Tract but not
otherwise deeded to an Owner"
"Landscape Easement — areas on the Plat to be landscaped and maintained by
the Corporation "
"Member — a Class A or Class B member of the Corporation as defined in the
Articles and Bylaws"
"Plat — the final plat of the Tract recorded in the Office of the Recorder of
Hamilton County, Indiana, which is referred to herein as if attached to and made a
part hereof'
"Reserve for Replacements — a fund established and maintained by the
Corporation to meet the cost of periodic maintenance repairs, renewal and
replacement of the Common Areas, at such time as Woodgate Homeowners'
Association, Inc. assumes responsibility for said areas."
"Tract — the land described in Exhibit A and commonly known as Woodgate
Subdivision."
13. At the time of the recordation of the Amended Covenants and Restrictions, the
WHOA was a duly authorized Indiana not - for - profit corporation Attached hereto and marked as
Exhibit 4 are the Bylaws for WHOA which, before April 3, 1999 when the WHOA was
administratively dissolved, were applicable to the WHOA.
14. Among other things, the Bylaws for the WHOA provide that a quorum consists of
the "presence in person or by proxy at any meeting of the membership of persons entitled to vote
fifty percent (50 %) of the votes of the membership shall constitute a quorum for any action
except as otherwise provided in or required by the Articles of Incorporation, the Declaration
(referring to the Declaration of Amended Covenants and Restrictions recorded January 28,
1998), these Bylaws, or by statute." (See, Ex. 3, Article II, Section 2, p. 2).
15. In addition, the Bylaws provide that where a majority of votes is required, that is
defined as "two- thirds (2/3) of the votes of members present (in person or by proxy) at a meeting
5
at which a quorum is present" and that this majority shall be sufficient for the transaction of all
business of the Corporation "except on all matters where a greater vote is required by the
Declaration, the Articles of Incorporation, these Bylaws or by statute." (See, Ex. 3, Article II,
Section 4, p. 2).
16. Article V, Section 3 of the Bylaws specifies the powers of the Board of Directors
of WHOA. Section (lc) grants to the Board the authority to "cause all of the common Areas to be
maintained The Board is also required to hold "at least semi -annual meetings for the benefit of
the Homeowners" (See, Ex. 3, Article V, Sections 3(k) and 14, pp. 6- 7).
17. The Board is not authorized to set the amount of the annual dues or to levy any
special assessment against members of the WHOA (i.e. all owners of lots in the Woodgate
subdivision) without first holding a meeting of the WHOA members and calling for a vote on the
amount of proposed annual dues or special assessments. (See, Ex. 3, Article IX, Sections 2 and 5,
p. 11).
18. The Bylaws of the WHOA further provide that,
"Each member of the Corporation...is obligated to pay the Corporation annual
dues and any special assessments that have been voted on by the members and
assessed by the Board of Directors. Each Assessment, together with the costs of
collection thereof, shall be the personal obligation of the Person who was the
Owner of the Lot at the time when the Assessment came due. Any assessments
which are not paid when due shall be considered delinquent. No member of the
Corporation may waive or otherwise escape liability for the assessments provided
for in the Declaration or herein by non -use of the Common Area or abandonment
of his lot " (See, Ex. 3, Article IX, p. 10).
19. Annual assessments may be imposed "by a vote of a majority of the Directors and
approved by the members at the Annual Meeting..." Further, any special assessments may be
levied by the WHOA, but "any such assessment shall have the assent of the Members who are
6
voting in person or by proxy at a meeting of such Members duly called for this purpose." (See,
Ex. 3, Article IX, Sections 2 and 5, p. 11).
20. All of the final recorded plats for each of the seven sections of Woodgate and
Section B(I) of the Amended Covenants and Restrictions contain the following restrictive
covenant:
"There are strips of ground shown on this plat and marked Drainage and Utility
Easement, reserved for the use of public utilities for the installation of water and
sewer mains, lines and wires, subject at all times to the proper authorities and to
the easement herein reserved. No permanent or other structures are to be erected
or maintained upon said strips of land, but owners of Lots in this subdivision shall
take their titles subject to the rights of public utilities."
III
The disputed fence on the 146th Street Lots
21. Each of the 146th Street Lots contains a ten -foot (10') drainage and utility
easement at the northern boundary of their lots. This ten -foot (10') utility and drainage easement
is actually located within and is a part of each of the 146th Street Lot Owners' lots and abuts the
right of way line for 146th Street.
22. At the time Section Five of Woodgate was developed, the developer, Langston
Construction Co., installed a wood fence, approximately six to eight feet in height on the line of
the ten foot drainage and utility easement and the right of way (hereinafter "the Fence "). As
evidenced by a survey for which the WHOA retained Weihe Engineers to perform in 2010, a
portion of the area is shown below and illustrates the location of the drainage and utility
easement, the right of way line and the Fence at issue:
7
w !ttns
W E n.. 'a'
/A 146th ST
eft lair
eg124
fl me w
WOE
71577.
0,0Y' 200.(
00,
WS?' 8" 19 343.10
Woodpond Roundabout
43.10' Y00.00' 1 too.. cia F - lo0.oi
A true and complete copy of the 2010 Weihe Engineers Survey of the Fence location is
attached hereto and marked as Exhibit 5 (hereinafter "the 2010 Survey ").
23. As indicated on the 2010 Survey, the Fence is not located either on or in a
Common Area or a Landscape Easement (as those terms are defined in the Amended Covenants
and Restrictions) Instead, the Fence is located either exactly on the line between the drainage
and utility easement or is encroaching either on the easement or on the right of way. (See, 2010
Survey Note 3 "An East -West board fence is located from 3.81 feet South to 1.8 feet North
(varies) of the Northerly lines of Lots Numbered 101, 102, 103 and Lots Numbered 125 through
130 in Woodgate, Section Five and Lots Numbered 82 and 83 in Woodgate, Section 4 as
indicated on the attached plat of survey").
24. As evidenced by the 2010 Survey, the Fence is located on either the private
property of the 146th Street Lot owners (i.e. within the ten -foot drainage and utility easement
which is part of each of their lots) or encroaches on the right of way. The Fence is not now, nor
has it ever been located in a Common Area or a Landscape Easement In fact, no such Common
Areas or Landscape Easements exist anywhere near the Fence.
8
Iv.
Facts leading to this dispute
25. On or about January 25, 2011, the Plaintiffs received a WHOA "letter"
communication wherein they were informed, among other things, that the WHOA Board had
decided to increase the annual dues for each homeowner from $70.00 per year to $200.00 per
year. According to the WHOA letter, "the $130 increase will provide for a significant portion of
the cost to replace the fence with an all wood shadowbox style fence, the 3'd option referenced
below..." Attached hereto and marked as Exhibit 5 is a true and complete copy of the January
2011 letter authored by "The Woodgate Homeowners Association Board ".
26. In response to the January 25, 2011 Board letter, on February 10, 2011, Plaintiffs
wrote to the then Board President, Edward ( "Fritz ") Strack, to explain why the Fence was not the
responsibility of the WHOA and why, as a consequence, Plaintiffs would not be paying the
additional $130.00 in dues. A true and complete copy of Plaintiffs' letter to Mr. Strack is
attached hereto and marked as Exhibit 6.
27. Plaintiffs' February 10, 2011 letter was the second time Plaintiffs had written to a
WHOA Board member to object to the collection and use of dues for the Fence. As referenced
in Plaintiffs' February 10, 2011 letter, approximately four to five years earlier, the WHOA Board
then was attempting to collect a special assessment to replace the Fence. Plaintiffs objected then
as well and were ultimately told they did not have to pay the special assessment.
28. Again in 2011 as evidenced by their February 10, 2011 letter, Plaintiffs objected
to the imposition of a special assessment and to the use of any WHOA funds for the Fence.
After Plaintiffs' February 10, 2011 letter, Mr. Strack communicated to Plaintiffs and other
members of the WHOA via WHOA newsletters, verbally in discussions with Plaintiffs and at a
9
homeowners meeting held in early summer 2011 that the Board understood and agreed that the
Fence was not located in a Common Area or Landscape Easement and was not, therefore, the
responsibility of the WHOA to repair, replace or maintain.
29. Plaintiffs chose not to pursue a declaratory judgment action at that time because
they were relying on the WHOA' s representations and acknowledgement that the issue over
payment for the Fence was moot. Moreover, in 2011 the WHOA, ceased any effort to impose or
collect the additional $130.00 special assessment and Mr. Strack further stated that any owner
who had paid the additional $130.00 could get a refund of that money.
30. On August 31, 2012, Plaintiffs received the "Woodgate Home Owners
Association Fall Newsletter" (hereinafter the Fall 2012 Newsletter") To Plaintiffs' surprise,
the newly elected Board arbitrarily and without any authority to do so, decided on their own to
install a new stone facade fence to replace the Fence at an estimated cost of $95,000. Attached
hereto as Exhibit 7 is a true and complete copy of the Fall'2012 Newsletter.
31. According to the Fall 2012 Newsletter, the WHOA currently has $46,000 on
deposit in its account consisting of $30,000 "raised from 2011 annual dues ($70.00 each), plus
the additional $130 fence assessment, and the remaining $16,000 was carried over from previous
years reserves." Moreover, the Fall 2012 Newsletter contains an announcement that, an
additional "$65,000 would have to be raised... [and] the WHOA Board will require another
$225.00 fence assessment in September 2012, and then another $225.00 fence assessment in
November 2012. The 2013 annual dues will remain at $70.00. This is the direction the WHOA
Board has detenuined is the best long term plan for the Woodgate community." (See, Ex. 7, p. 2).
32. Contrary to the requirements of the Bylaws, no meetings of the members of the
WHOA have been held to discuss or vote on either the 2013 annual dues, the $450.00 fence
10
assessment or on the fact that $130.00 collected from some members in 2011 would be used to
pay for a new fence. Moreover, those, like the Plaintiffs who did not pay the $130.00 fence
assessment in 2011 are now required to do so. Attached hereto and marked as Exhibit 8 is a true
and complete copy of the "2012 Major Improvement Assessment Invoice" Plaintiffs received on
or about September 5, 2012 wherein they are now being asked to pay $580 00 in a special
assessment for the planned new fence.
33. Not only is the replacement of the Fence not the responsibility of the WHOA
because it is not either in a Common Area or a Landscape Easement, but the manner and method
by which the current WHOA Board has decided to proceed by imposing a "fence assessment" of
$580.00 is contrary to the specific requirements and rules of the Amended Covenants and
Declarations and the WHOA Bylaws. Consequently, Plaintiffs are left with no choice but to
request declaratory and injunctive relief to halt the purported new Board's actions
34. Plaintiffs are not in default of and, in fact, have paid all annual dues assessments
levied upon them since they initially acquired their lot.
V.
DECLARATORY JUDGMENT REQUEST
35. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 -34 of
this Complaint as if fully set forth herein.
36. Pursuant to I.C. 34 14 1 1 this Court is vested with the power to "declare rights,
status, and other legal relations whether or not further relief is or could be claimed. No action or
proceeding is open to objection on the ground that a declaratory judgment or decree is prayed
for. The declaration may be either affirmative or negative in form or effect. The declaration has
the force and effect of a final judgment or decree."
11
37. As evidenced by the facts as set forth herein, there exists a controversy between
Plaintiffs and the WHOA entitling Plaintiffs to a judicial declaration of their rights and legal
relations concerning the imposition of the WHOA annual dues and special assessments and what
the WHOA may use money collected from such dues and assessments to pay for. Plaintiffs
have a substantial present interest in the relief sought and a real and actual controversy exists
between them and the WHOA.
38. The Amended Covenants and Restrictions, the Bylaws, the final recorded plats for
Woodgate and the initial Covenants and Restrictions recorded with each of the plats for the
seven sections of Woodgate are restrictive covenants applicable to each lot owner in Woodgate,
including Plaintiffs.
39. A restrictive covenant is an agreement between a grantor and a grantee in which
the latter agrees to refrain from using his property in a particular manner. One purpose of
restrictive covenants is to maintain or enhance the value of land by controlling the nature and use
of lands subject to a covenant's provisions. Because covenants are a form of express contract, a
court is to apply the same rules of construction. Construction of the terms of a written contract is
a pure question of law. Drenter v. Duitz, 883 N.E.2d 1194, 1199 (Ind. Ct. App. 2008).
40. Indiana law permits restrictive covenants but finds them disfavored and justified
only to the extent they are unambiguous and enforcement is not adverse to public policy. When
courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all
doubts should be resolved in favor of the free use of property and against restrictions. Id.
41. There are two methods of creating restrictions upon the use of property. One is
by express covenants contained in the deed, and the other is by a recorded plat of the subdivision
12
and a purchaser buys lots with reference to the plat. Wischmeyer v. Finch, 231 Ind 282, 288,
107 N.E.2d 661, 664 (Ind. Ct. App. 1952).
42. A servitude, such as the one at issue here — which requires lot owners in
Woodgate to pay yearly association dues and special assessments (where appropriate and so long
as the requirements for a meeting and vote are met), can be created by contract or by deed
Restatement 3rd of Property, §2.1 Servitudes.
43. The contractual terms and obligations for Plaintiffs and other Woodgate lot
owners to pay annual dues and special assessments are contained in the Amended Covenants and
Restrictions as well as the WHOA Bylaws. These documents make it clear that the Woodgate
lot owners are only required to pay annual dues in an amount established by a vote of the
members at the annual meeting and to pay special assessments only when the Board calls a
special meeting of the members and puts the issue of the special assessment to a vote of the
members attending the special meeting. Moreover, there must be a quorum at any such meeting
consisting of at least fifty percent (50 %) of the members entitled to vote (who may vote either in
person or by proxy) and a two - thirds majority of the quorum of members attending the meeting
(in person or by proxy) is required in order to approve of a special assessment.
44. The contractual terms and obligations applicable to. the WHOA Board do not
permit the Board or the WHOA to use any funds received from members of the WHOA to
maintain, repair, or replace items or property which are not otherwise in a Common Area or
Landscape Easement. Put another way, neither the WHOA nor the Board of the WHOA may
collect and spend members' dues (whether paid as an annual due or as part of a special
assessment) for the improvement of certain lot owners' private property. Yet that is precisely
what the WHOA through its acting Board members is proposing to do.
13
WHEREFORE, Plaintiffs respectfully request that this Court (1) evaluate the terms of
the written contractual covenants and restrictions applicable to WHOA members; (2) adjudicate
the respective rights of the parties based upon the result of said inquiry, including making a
judicial determination that the Woodgate Homeowners Association d/b /a Woodgate
Homeowners Association, Inc. is not authorized to nor may it collect and use dues paid by the
members of the WHOA for the repair, maintenance or replacement of that certain fence located
along the eleven (11) lots that border the Woodgate subdivision and 146th Street because this
fence is not within any Common Area or Landscape Easement of the subdivision; (3) determine
that, based on the foregoing, no additional dues or monies are due and owing to the WHOA from
the Plaintiffs; (4) alternatively, determine that the current plan to require the payment of $580.00
from each lot owner for the replacement of the Fence is contrary to the Bylaws, not authorized
and not permitted because the plan was neither discussed at nor voted on by the members at any
meeting; and (4) grant the parties all appropriate relief just and proper in the premises.
VI.
PERMANENT INJUNCTIVE RELIEF REQUEST
45. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 -44 of
this Complaint as if fully set forth herein
46. Each year, new WHOA Board members are elected to serve for a one -year term.
As evidenced by the change of position from the 2011 Board to the 2012 Board, unless
permanently enjoined, the issue of whether and to what extent WHOA funds may be used for the
repair, replacement or maintenance of the Fence are more likely than not to keep arising.
47. Consequently, Plaintiffs reasonably believe that the only way to prevent future
lawsuits, disputes and issues between themselves and, indeed other WHOA members and each
14
new year's WHOA Board members is to seek a permanent injunction preventing the WHOA
from utilizing association funds for the Fence.
WHEREFORE, Plaintiffs respectfully request that the Court permanently enjoin the
Woodgate Homeowners Association, Inc from increasing the annual dues or imposing any
special assessment for the purpose of raising funds from the members of the Association for the
repair, maintenance or replacement of the disputed fence and for all other appropriate relief.
STEWART & IRWIN, P.C.
251 E Ohio Street
Suite 1100
Indianapolis, IN 46204
Telephone: (317) 639 -5454
Facsimile: (317) 632 -1319
pkovacs @ silegal com
481009v1
15
Respectfully submitted,
Peter S. Kovacs, Attorney No. 16771 -49
Attorney for Plaintiffs
I____yng
9809804137
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
.# P6 13 'per 43 DEC LOV8 R
RES 30.0053 pa.
On E 13 -PG- Yea
DECLARATION
Pa is vP4 t-7
pc. I Si- 6o OF
AMENDED COVENANTS AND RESTRICTIONS
rpc.l z:. 12+
pcI SL2I(
pc i
WOODGATE SUBDIVISION
CARMEL, INDIANA
This Declaration, made on the 15" day of September, 1997, by the WOODGATE HOME OWNERS
ASSOCIATION, INC., an Indiana Nonprofit Corporation, and LANGSTON DEVELOPMENT COMPANY,
INC., ("Declarant") an Indiana Corporation.
WITNESSETH:
WHEREAS, the following facts are true;
1. Declarant amdthe Consenting Owners are the owners of the real estate located in Hamilton County,
Indiana, upon which Declarant has developed a residential subdivision leam as "Woodgate ".
2. Dedaraot and the Consorting Owners desire to provide for the preservatim and eshanc emmt of the
property values, amenities and opportunities in Woodgate and for the maintenance of the Tract and the improvements
thereon, and to this end desire to subject the Tract to the covenants, restrictions, easements, and charges hereinafter
set forth, each of which is for the benefit of the Lots and lands in the Tract and the owners and future owners thereof
3. Declarant deems it desirable, for the efficient preservation of the values and amenities in Woodgate,
to create an agency to which may be delegated and assigned the powers ofmaintaiomg administering and enforcing
the Covenants, collecting and disbursing the Assessments and charges hereinafter created, and promoting the health,
safely and welfare of the Owners of Lets.
4. The Woodgate Homeowners have incorporated under the laws of the State of butane aonproft
corporation known as the Woodpte Homeowners' Association Inc., (aka. WHOA) for the purpose of exercising
such functions.
5. NOW THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract, as they
are held and shall be held, conveyed, hypothecated or eonuobered, leased, rented, used occupied and improved, are
subject to the fdlowmg restrictions, all of which are declared to be in furtherance of a plan for the improvement and
sale of Lots in the Tract, and are established and agreed upon for the purpose of enhancing and protecting the value,
desirability and attractiveness of the Tract as a wade and of each of the Residences, Lots and lands situated therein,
The Covenants and Restrictions shall run with the land and shall be binding -upon the Declarant, the Consenting
Owners and their respective successes and assigns, and upon the parries having or acquiring any interest in the Tract
or any part or parts thereof subject to such Covenants and Restrictions, and shall inure to the benefit of Dedataut
and its successors intitleto the Tract or any part or parts thereof.
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EXHIBIT
I L
2_n1
DEFINITIONS
The following terms, as used in this Declaration, unless the context dearly requires otherwise, shall mean the
following:
Appheable Date - July 12, 1995, the date of incorporation of WHOA.
Architectural Approval Committee -the entity established by the Declarant, to include repreimtativas of WHOA,
to review all Lot development Plans for all future construction proposed to be built in the 'Ina.
Articles - The Articles of Incorporation of tbe Woodgate Homeowners' Association, Inc.
Assessments and Does - all sums lawfully assessed against Members of the Corporation or as declared by this
Declaration, the Amides or the Bylaws.
Bylaws - The Code of Bylaws of the Woodgate Homeowners' Associaticn, Inc.
Board of Directors - the governing body of the Corporation elected by the Members in aaoidaace with the Bylaws.
Common Areas - areas and easements defined as part of the Tract but not otherwise deeded to an Owner.
Corporation - Woodgate Homeowners' Association, Inc., an Indiana nonprofit corporation, its successors and
assigns.
Declarant - Langston Construction Company, Inc., (the Developer), its successors and assigns to its interest in the
Tract other than Owners purdiasing lots or residences by decd from the Declarant (unless the conveyance indicated
an intent that grantee assume the rights and obligations of Declarant).
Drainaee System - the open drainage ditches and swales, the subsurface drainage tiles, pipes and structures, the dry
and wet retention and/or detesticn equipment and facilities located in the Tract and designed for the purposes of
cormrolling, retaining or expediting the drainage of surface and sub -surface waters from, over and across the Tract as
shown on the Plat.
Entry Ways - the structures commuted as an tmrmnce to Woodgate (exclusive of the street pavement, curbs and
drainage structures and tiles), and the Landscape Easement surrounding such structures, wbeher located within or
without of the Tract
Initial Capita Assessment - the initial assessment for the Reserve for Replacements Fund.
Landscape Easement - area on the Plat to he landscaped and maintainedby the Corporation.
Lot - platted lot as shown on the Plat_
Lot Development Plan - (I) a site planereparedby a licensed engiineer or architect, (D) framdation plan and
proposed Smshedfloor elevation, (BD) building plans, including elevation and floor plans, (IV) material plans and
spedfications, (V) landscaping plans, and (VI) all other data or information that the Corporation may request
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pertaining to the irnprovement or alteration of a Lot or the construction or alteration of an existing residence or other
structure or within the Tract.
Meunber - a Class A or Class B member of the Corporation as defined in the Articles and Bylaws.
Owner - a Person, including Declarant, who at the time has or is acquiring any interest in a Lot, except a person who
bas or is acquiring suds interest merely as seauity for the performance of an obligation.
po.so - an individual, firm, corporation, partnership, association, trust or other legal entity, or any cambinatian
thereof.
Plat - the final plat of the Tract recorded in the Office of the Recorder of Hamilton Candy, Indiana, winch is referred
to herein as if attached to and made a part thereof.
•
Reserve for Replacements - a find Intablished and maintained by the Corporation to meet the cost of periodic
maintenance, repairs, renewal and replace of the Common Areas, at suds time as Woodgate Homeowners'
Association, Inc., assumes responsibility for said areas.
Residence - any struct reirdended exclusively for occupancy by a single family together with all appurtenances
thereto, including private garage and out build and recreational usual and incidental to the use of a single family
residential lot as governedby the Amended Woodgate Covenants and Restrictions.
Tract - the land described in Exhibit A and commonly lmowa as Woodgate Subdivision_
A- CONSTRU 11ON AND DESIGN
L No budding shall be erected, placed or altered cm any building plot in this subdivision mdil the building
plans, specifications, and plot plan stowing the location or such brdldinghavebeen approved as to the conformity
and harmony of external design with existing structure herein and as to the building with respect to topography and
finished grand deviation, by the develo per, owner of the herein described real estate, or by their duly authorized
representatives.
Il. If the Developer fails to act upon any plans submitted to it for its approval within a period of Sdtr® (15)
days from the submission data of the same, the owner may proceed ehm with the building according to the plans as
Ives shall be entitled to any compensation for services
approved Developer Devoper r the designated representatives
performed pursuant to this covenant.
III. All lots in this subdivision are reserved for residuutal use, and no building other than a one-family
residence or structure or facility accessory in the use thereto shall be erected thereon.
IV. Not more than one building shall be erected or used for residentialpurposes on any lot in this
subdivision.
V. The ground floor area of the main strudore, exclusive of me -story open porches and garages, shall not
be less than Twenty -two hundred (2200) square feet in the case of a one story studme, nor Is than Fourteen
hundred (1400) square fed in the case of a multiple story structure, providedno structure of more than one story
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shall have less than an aggregate of Tamty -four hundred ( 2400) squaw feet of finished andhvahle floor area. All
garages shall be attached to the residence dwelling and be a ®main of two car size
VI. No trailer, tart, shack, attached shed, basemat, gar age, barn, or other out-building or temporary
structure shall be usedfor temporary or permanent residence on any lot in this subrbvisim. An attached garage, tool
shed or detached stooge building eroded or used as an accessory to an residence in this subdivision shall be of
permanent type of crostructim and conform to the general and itectu a and appearance of such residence. No
swimming pools shall be wmentktad in areas reserved as easements.
VD. Front and side yard building setback lines am hereby established as shown m this plat, betwearwhich
lines and the property lines ofthe street, there shall be erected or maimanredno building or structure.
VICE No building structure or accessory building shall be erected doser to the side ref any lot than tea (10)
feet. Where buildings are erected on mom than one single lot this mstrirhm shall apply to the side lines of the
extreme boundaries of the multiple Lots.
LX. No structure in this subdivasicm, without special approval from the Developer shall exceed two and one -
half (2 1/2) stories of Twenty-five (25) fed in height measured from finishedgradeto the underside of the eve line, and
no structure other than an open porch shall be erected between the building lino as designated at the plat and
property line of the street.
B. EASEMENTS AND DRAINAGE
L There am strips of ground as shown on this plat and marked Drainage and Utility F-asemat, reserved for
the use of public utilities for the installation of water and sewer mains, poles, ducts, lines and wires, subject at all
times to the proper authorities and to the easement herein reserves No permanent or other structures are to be
erected or maintained upon said strips of land, but owners of lots in this subdivision shall take their tides subject to
the tights of public utilities.
IL Areas shown on this plat and marked as Detee rtim/Rtimtion shall be recorded as drainage easements,
reserved for the installationand maintenance of storm sewers structures and subject at all times to proper City mad/or
County authorities and the ®semmt herein reserved The areas shall bemai tained free of weeds, trash or other
obstruction by the hommwoer or Homeowner's Association.
ID In the event storm drainage from any la flows across another lot, provision shall be made to permit such
drainage to ratimsq without reshithm or redudion, across the downstream lot and iota the natural drainage char d
or course, even through no eve ifir drainage easement for such flow of water is provided
IV. Outlets for sump pimp water will be provided for each lot in this subdivision by the Developer or home
builder at the time of lot development Ifduring excavation of the foundation for crawh space or basement, ground
avatar is encountered, or if the house location is in an arm of high water table (as per Hamilton County Surveyor or
City of Carmel), an outlet v iiI be provided directly to a storm sewer or approved opal ditch with plastic pipe. Ile
route of outlet will be via platted easements and approved by proper agencies. Where a storm sewer exists m or
tiredly adjacent to a subject lot, all sump pumps shall tie directly to storm sewer via umdergamdpipe. Lots not
located in an area of high 'Fearer table may outlet sump water in the rear yard, no closer than tweedy -five (25) fed
from established lot lines or platted easements.
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7 -net
V. Construaim of any sump pomp outlet will commence only Waal appropriate construrim plans have
been submitted and approved by the proper agencies and applirablepermits issued from the local building authority.
Where consnurtim will be in established drainage and/or utility easements, approval must be obtained fiom City of
Carmel of Idamiltm County Surveyor. The maintenance of drainage pipes and facilities for disdaargmg shy pumps
shall be the responsibility of the individual homeowner and/or a Homeowners' Association
VI. Geo-thermal heat pumps shall be of the dosed loop type only.
C. PROPERTY AND USAGE RESTRICTIONS
1. No fence shall be erected in Us subdivision between the boildinghoes and the property line of the streets
as shown on the with plat, except with the approval of the Developer, which fences shall not exceed 42 inches in
height and shad be of a decorative name. No fences shall be constructed in areas designated for
Detention/Remotion
II. No beat, trailer, or camper of any kind (motoring but net in limitation thereof house trailers, camping
trailers or boat trailers), or any disabled vehicle shall he kept or parked on any la except within a garage or other
approved stnrdne.
III. No noxious, unlawful or other offensive activity shall be carried out on any lot in this subdivision, nor
shall anything be done therein which may be or may become an annoyance or noisaoce to the neighborhood
IV. No animals, livestock, or poultry of any description shall be raised, bred or kart on any lot, except dogs,
rats or other housdwldpets may be kept provided that they are not kept, brat or maintained for commercial
prop,
V. All lot owners will be required to install, or to have installed, at least one gas or electric "dusk to dawn°
yard light in the front yard All garages opening to the street shall have automatic door controls.
VI. No lot in this sub division shall be used or maintained as a damping gromd for rubbish, trash, garbage or
other waste, and shall not lx kept, accept 1 sanitary containers. Trash shall not be burned, except in suitable
incinerators.
VII. It shall be the duty of the owner of each lot in the subdivision to keep the grass on the lot properly at and
to keep the lot free from weeds and trash and otherwise neat and attractive in appearaece. Should any owner fail t do
so the the Developer may take such amen as it deems appropriate in order to make the lot neat and attractive and th
eowner shall upon demand reimburse Developer for the expense incurred in so doing
D. ENFORCEMENT AND RIGHTS
L La owners, rpm taking title, agree to waive all rights to oppose future raring changes and special
permits necessary to complete the Master Plan of WOODGATE,
II. The foregoing mvmams (or restrictions) are to run with the land and stall be binding on all parties and
persons claiming under them for a period of Twenty- five (25) years from the data of this plat, at which time said
covenants, (or restrictions), shall be automatically extended for successive periods of Ten (10) years unless changed
by vote of majority of the that owners of the buildings covered by these covenants, or restrictions, in whole or part.
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one of the for covenants or restridioas, by judgment or court order shall in nn away affect
Invalidation oftbea gam foregoing
any ofthe other covenants m restrictions, which shall remain in full force and effect.
III. The right to enforce theseprovisws by rnpmction, together with the rigor to cause the removal by due
process of law, of any structure or part thereof erected, or maintained in violation hereof, is hereby dedicated to the
public, and reservedtothe several owners of the several lots in this subdivision and d their heirs and assigns.
N. No owner of any lot shown herein shall have the rift to remonstrate agpmat annecahw of that lot to the
City of Camel
AMENDMENTS DUE TO CONSENT DECREE
The Amesdmonts are to be considered addrtoos to the above existing Covenants and Restrictions.
L Construction and Design- The 1 angems (Declaram/Developer) shall take all ne-.esn ; steps to cause
the Woodgate Lots to be developed as described and depicted in the WOODGATE PLATS, in conformance with the
Amended Woodgate Covenants and Restrictions and in such a manner as to maintain conformity and harmony with
costing structures, byre uiriog at a minimum the foils/mg
a. At future houses in Woodgate shall be custom houses and not be built by any commercial builders
or tract home builders (e.g including lett not limitedto the following. Trinity Homes, C.P. Morn, M/1 Homes,
Delmore Homes, Hansen $ Nom, em )
b. All future houses in Woodgate shall have at least three (3) sides of brick wrap on the first floor and
all exterior fireplaces must be full brick The use of gas fireplace inserts that are vented similar to water heaters
throng hthe side of a house will not be mnsidaed a chimney and tiros will be exempt from the brick requirement.
Builders may use duvet or comparable plaster type of product in It of brick exreuor.
c. All future houses in Woodgate shall have a partial basement unless they are built on tho following
power line lots 67 68 69 70 71 72 73 74 75 76 90 91 104 108, 110 and 194 (per Plat). All lots built on
the aforementioned power line lots shall be built upon crawl spaces or basements, if so desired No slabs shall be
allowed for any houses in the Woodgate subdivision, even an the power line Ids described above.
d No houses in Woodgate shall be allowed to use vinyl siding or vinyl windows in their construction or
future remodeling
11 Maintenance of Entry Ways and Landscaping Easements. The 1 govern (Declarant/Developer)
shall maintain the Easy Ways and the LandscapingEasemads and all improvements and planting thereon, and the
Maintenance Costs thereof, ma the time the subdivision is complete. After sod' time the Corporation shall maintain
the Entry Ways and the Landscaping Easemmts and all improvements and plantings thereon, and the Maintenance
Costs thereof. Grass, trees, shrubs and other plantings located an an Entry Way or a Landscaping -Easement shall be
kept neatly cut, arlpvated or trimmed as reasonably required to maintain an attractive entrance to Woodgate or pan
thereof. All entrance signs located on an Entry Way shall be maintained at all times in good and sightly =cairn
appropriate to a fast -lass residential subdivision.
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m. Homeowners Association The homeowners in Woodgate shall, with the assistance of the Langsmos
(Declarant/Developer), form a mandatory Hameowoa's Association for all current homeowners who agree to be so
enjoined and for all future lot/homeowners (including lot homeowners of lots 141 and 169 of the new subdivision to
be constructed by Developer directly west of Woodgate).
IV. Arelitedneal Approval Committee. The Langston (Developer) shall cause to be created an
Architectural Approval Committee Such Committee shall be entirely carolled by the Langs[ms
(Declamm/Devdoper) until such time as all of the lots in Waotlgate have been sold (at whidtime the Homeowner's
Association shall control the Architectural Approval Conmdttee). Such Ardxitedtaal Approval Committee shall
exercise the right to regulate the external design, appearance, use, location and maintenance of devdopmeot on the
Woodgate lots. Although the Architectural Approval Committee shall, in mortising such right, utilize the cdteria set
forth herein as minimum requirements for approval, the Committee may where necessary require tbat such minimum
requirements be exceeded in order to maintain conformity and harmony with existing structures of Woodgate.
V. Enforcement and Milts The Langstoos (Declarant/Developer) shall provide within two (2) business
days of receipt, to the Presides of theHomewmer's Association or to his/her designee, a copy of all "Lot
Development Plans" for all homes proposed to be built in Woodgate (including lots 141 and 169 of the new
subdivision)_ The Assooatim shall have five (5) business days from actual receipt of such plans to report any
objections of corers that the Association may have to the Langston (Declarant/Developer). If the Association
does not provide such objections to Langs ton (Declarant/Developer), it is to be assmnedthatthe Associatimhas no
objection to the proposed plans. The Assodatim shall have no vote m approval of the a,thitat u.al plans votil all
lays are sold: however, the association shall be entitled to enforce their rights order the Amended Covenants and
restrictions, any recorded covenants and the Consent Decree entered into as a resolution to The Lis Pendense jded
in Hamilton Superior Court of Indiana under Cause number 29D02-9310 -CO-38&
ADDITIONAL AMENDMENTS
These Amendments are to be omsidesed additions to the above Existing Covenants and Restrictions as well as the
Ammdmads Due to Cursed Decree.
I. Initial Assessment. The Initial assessment for Operations shall be set at twenty dollars (S20.00). Such
assessmm is a me-time initial assessmeot to defray the cost of organizing and forming the Corporation and to
establish the "Reserve for Replacement" fend This assessment is due form wasting homeowners and payable to the
Woodgate Homeowners' Association immediately upon incorpomtim of the Corporation The ncarent is due
from all fimnehommvmers at the time of oapancy.
11. Dun. The annual dues shall initially be set at twenty dollars (520.00) per member. All future dues
shall be set by resohutim of the Board of Directors.
HL Ponds. The Woodgate Homeowners' Association agrees to subordinate its control aver the drainage
pods to the actual propaay owners (per Woodgate Plat) of the drainage pond real estate and/or their specified Pond
Homeowners' Association_ The Woodgate Homeowners' Association realizes that such property is "Private
Property" to be maintained controlled and utilized solely by those property owners of the ponds (as shown in the
Woodgate Plat) within the guidelines of the above Woodgate covenants including but not limitedto the EASEMENTS
AND DRAINAGE RESTRICTIONS and PROPERTY AND USAGE RESTRICTIONS. The paid property
homeowners shall be solely responsible for any and all liability regarding such prvyen as well as all costs for
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special mainteoance of such property. The Woodgate Homeowners' Association does reserve all ,;= grantedit by
the Articles of Incorporation, Bylaws and above Covenants in regards to such property.
Prepared by
giquJirt2
Richard D. Sunderland Presider
Woodgate Hommcvners Association
e-ta- n -c¢_ / "-"_fit`
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CODE OF BYLAWS
OF
WOODGATE HOMEOWNERS' ASSOCIATION, INC.
ARTICLE I
Name and Location
The name of the Corporation is Woodgate Homeowners' Association, Inc (hereinafter referred
to as the "Corporation "). The principal office of the Corporation shall be located at:
1463 Queensborough Drive
Cannel, Indiana 46033
until and unless changed in accordance with the law by the Board of Directors, but meetings of
members and directors may be held at such places either within or without of the State of Indiana as
may be designated by the Board of Directors.
ARTICLE If
Definitions
(1). "Declarant' shall mean Langston Development Company, Inc., an Indiana
Corporation, and any of it's successors and assigns designated in one or more written recorded
instruments to have the rights of Declarant under the Declaration, including, but not limited to, any
mortgagee acquiring title to any portion of the Real Estate pursuant to the exercise of rights under, or
foreclosure of, a mortgage executed by Declarant
(2). "Declaration" shall mean and to refer to the Declaration of Covenants and
Restrictions of Woodgate Subdivision as amended on , 1995, and recorded on
119- 819 8 , 1-995, in the office of the Recorder of Hamilton County, Indiana, and as the same may
be amended or supplemented from time to time as therein provided, said Declaration being
incorporated herein by reference as if set forth at length herein.
(3). "Corporation" shall mean and refer to Woodgate Homeowners' Association, Inc.,
an Indiana Nonprofit Corporation.
(4). All of the definitions and terms as defined and used in the Declaration and the
Corporation's Articles of Incorporation shall have the meanings in these Bylaws and reference is
specifically made to the Declaration containing definitions of terms.
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EXHIBIT
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ARTICLE II
Membership and Voting
(1). Membership, Transfer, Voting Rights. Reference is hereby made to the
Declaration and to the Corporation's Articles of Incorporation, of which are incorporated herein by
reference, which sets forth terms, provisions and conditions governing and relating to membership
rights in the Corporation, transfer of membership and voting rights of classes of members, all of which
terms, provisions and conditions are incorporated herein by reference.
(2). Quorum. After the Applicable Date, the presence in person or by proxy at any
meeting of the membership of persons entitled to vote fifty percent (50 %) of the votes of the
membership shall constitute a quorum for any action except as otherwise provided in or required by
the Articles of Incorporation, the Declaration, these Bylaws, or by statute. If, however, such quorum
shall not be present or represented at any meeting, the members entitled to vote there at shall have the
power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum as aforesaid shall be present and represented.
(3). Proxies. Votes may be cast in person or by proxy. Proxies must be filed with the
Secretary of the Corporation before the appointed time of each meeting of the members of the
Corporation Cumulative voting shall not be permitted.
(4). Matority Required. A majority of two- thirds (2/3) of the votes of members present
(in person or by proxy) at a meeting at which a quorum is present shall be sufficient for the transactio:
of all business of the Corporation except on matters where a greater vote is required by the
Declaration, the Articles of Incorporation, these Bylaws or by statute.
(5). Meetings. After the Applicable Date, meetings of the Corporation shall be in
accordance with the following provisions:
(a) Annual Meetings. The first annual meeting of the members of the
Corporation shall be held within one (1) year from the date of incorporation of the
Corporation, the exact date and time to be decided by the Board of Directors. At such first
annual meeting of the members, the members may designate a regular day or date for
successive annual meetings. If the members fail to designate such regular day or date, the
Board of Directors may continue to designate the day or date of the next annual meeting until
such designation is made by the members. If any designated day or date falls upon a legal
holiday, it shall be understood that the actual date of meeting shall be the next business day
succeeding such designated day or date
(b) Special Meetings. A special meeting of the members shall be held within
thirty (30) days after the Applicable Date, at which time an election shall be had of a full slate
of Directors who shall collectively replace, for their unexpired terms, the Board and/or Officers
in office immediately prior to such election. It shall be the duty of the President to call a
special meeting of the members when requested, in writing, by a majority of the members of
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the Board of Directors or upon a petition signed by members of the Corporation who are
entitled to vote twenty-five percent (25 %) of all of the votes of the membership. Notice of any
special meeting shall state the time, place and purpose of such meeting. No business shall be
transacted at a special meeting except as stated in the notice unless by consent of four -fifths
(4/5) of the votes present in person or by proxy at such meeting.
(c) Notice of Meetings. After the Applicable Date, it shall be the duty of the Secretary to
serve a notice of each annual or special meeting, stating the purposes thereof as well as the
time and place where it is to be held, upon each member of record, at least ten (10) days
prior to such meeting. The mailing or delivery by representative of such notice to each
member at the address shown for such member on the corporation's records shall be deemed
notice served
(d) Order of Business. The order of business at all meetings of the members shall, to the
extent applicable, be as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Roll Call
Proof of meeting notice or waiver of notice.
Reading of minutes of preceding meeting.
Reports of Officers.
Reports of committees_
Election of Directors.
Unfinished business.
New business.
ARTICLE V
Nomination and Election of Directors
(1). Nomination. After the Applicable Date, nomination for election to the Board of
Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at
the annual meeting The Nominating Committee shall consist of a Chairman, who shall be a member
of the Board of Directors, and two or more members of the Corporation. The Nominating Committee
shall be appointed by the Board of Directors prior to each annual meeting until the close of the next
annual meeting and such appointment shall be announced at each annual meeting. The Nominating
Committee shall make as many nominations for election to the Board of Directors as it shall in its
discretion determine, but not less than the number of vacancies that are to be filled. Such nominations
may be made only from among members of the Corporation, or persons deemed to be members
thereof, in accordance with the Declaration and Articles of Incorporation.
(2). Election. After the applicable Date, election to the Board of Directors shall be by
secret written ballot At such election, the members or their proxies may cast, in respect to each
vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration and
Articles of Incorporation. The persons receiving the largest number of votes shall be elected.
Cumulative voting is not permitted.
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ARTICLE V
Board of Directors
(1) Number and Qualification. Prior to the Applicable Date, the number of Directors
comprising the Board shall be three (3), which from time to time be increased by resolution adopted
by not Tess than a majority of the Board of Directors. From and after the Applicable Date, the number
of Directors comprising the Board shall be five (5), which number may from time to time be increased
or decreased by resolution adopted by not less than a majority of the Board of Directors. In no event
shall the number of Directors be Tess than three (3) nor more than five (5) and no reduction in the
number of Directors shall have the effect of removing a Director from office prior to the expiration of
his term. In the event the number of Directors is increased subsequent to the Applicable Date, the
election of the additional Director or Directors shall be by a vote of the members entitled to elect such
additional Director or Directors according to a procedure established by the Board by resolution.
(2) Board of Directors.
2.1. Election of Board of Directors Before Applicable Date. The first Board of
Directors named in the Articles of Incorporation shall maintain, manage and administer the
affairs, the real estate and other property of the Corporation until the first meeting of the
members occurring on or after the Applicable Date, and until their successors have been duly
elected and qualified, unless said Directors sooner resign, be removed or otherwise disqualified
to serve in which case the Class B members shall elect their replacements).
2.2. Election of the Board of Directors After Applicable Date. Subsequent to
the Applicable Date, Directors shall be elected at the annual meeting provided in Article 3.
The board may, by resolution, establish such election procedures as it deems appropriate. Voting
for the Board of Directors shall be by secret written ballot. The ballot shall be prepared by the
Elections Committee and shall contain the name of each person nominated for election. Those
persons receiving the highest number of votes shall be elected
2.3. Term. Except for the Initial Board which shall serve until the Applicable Date,
each Director shall serve for a term of one (1) year or until his successor is elected and
qualified Incumbent Directors shall be eligible for re- election.
(3) Powers. The Board of Directors shall have such powers as are reasonable and necessary
to accomplish the performance or their duties, which powers include, but are not limited to, the
power:
(a) To adopt and publish rules and regulations governing the use of the facilities, if
any, of the Corporation, and the personal conduct of the members and their guests thereon,
and to establish penalties for the infraction thereof;
(b) To suspend the voting rights of Class A members and right to use any Corporation
facilities of a member, but not rights to access and easements necessary for the use of his lot,
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during any period in which such member shall be in default for a period of thirty (30 ) days in
the payment of any assessment levied by the Corporation, or the payment of any other amount
or the performance of any other term of the Declaration or these Bylaws. Such rights may also
be suspended after notice and hearing, for a period of not to exceed sixty (60) days, for
infraction of published rules and regulations;
(c) To exercise for the Corporation all powers, duties and authority vested in or delegated to
this Corporation and not reserved to the membership or Declarant by other provisions of these
Bylaws, or the Articles of Incorporation, or by statute;
(d) To declare the office of a member of the Board of Directors to be vacant in the event such
member shall be absent from three (3) consecutive meetings of the Board of Directors;
(e) To employ a manager, an independent contractor, or such other employees as they deem
necessary, and to prescribe their duties, subject to the imitations set forth in the Declaration,
Articles of Incorporation or these Bylaws;
(I) To do and take all such action as is or may be necessary, desirable, or appropriate to
perform the duties, obligations and responsibilities of the Board as required by the Declaration,
other provisions of these bylaws, the Articles or by statute.
(g) To enforce all provisions of the Declaration, Articles of Incorporation and these Bylaws,
not retained by the Declarant, including but not limited to the collection of' annual dues and
special assessments, enforcement of the Declaration and enforcement of the Consent Decree
entered into as a resolution of the Lis Pendens filed in Hamilton Superior Court of Indiana
under Case number: 29D02- 9310 -CP -388. The Board also reserves the right to enforce these
provisions by injunction or other legal means, together with the right to cause removal by due
process of law, of any structure or part thereof erected or maintained in violation of the
provisions of the Declaration, Articles of Incorporation, these Bylaws and statutes. Whosoever
is found in violation of the herein stated provisions shall be held financially liable for any and all
costs associated with the legal remedies incurred by the Homeowner's Association in their
enforcement of said provisions.
(h) To issue or cause an appropriate officer to issue a receipt for paid dues and assessments.
(i) To procure and maintain liability and other hazard insurance on property owned by the
Corporation which shall include fire and extended coverage on insurable common property on
a current replacement cost basis in an amount not less than 100% of the insurable value (based
on current replacement only), and to use the proceeds of such insurance solely for the
replacement or reconstruction of such insurable common property including insured
improvements; and to procure and maintain other insurance required or authorized by the
Declaration, and to use the proceeds thereof for their intended purposes;
(j) After the applicable Date, to cause all officers or employees having fiscal responsibilities to
be bonded, as it may deem appropriate;
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(k) To cause all of the common Areas to be maintained; and
(I) To perform, or cause to be performed, all duties and obligations imposed upon the
Corporation and the Board of Directors under the Declaration, Articles or statute.
(5). Term of Office. At the first meeting after the Applicable Date, and at each annual
meting thereafter, the members shall elect Directors for a term of one (1) year to fill the vacancies
created by expiring terms_ There shall be no limit on the number of times a Director may serve.
(6) Vacancies. Except for vacancies in the Board of directors occurring prior to the first
meeting of members following the Applicable Date, any vacancy in the Board of Directors shall be
filled by vote of the majority of remaining Directors, even though they may constitute less than a
quorum. Each person so elected shall be a Director for the unexpired term of his predecessor, or until
his successor is elected.
(7) Compensation. No Director shall receive compensation for any services rendered to
the Corporation as such Director. However, any Director may be reimbursed for his actual expenses
incurred in the performance of his duties, and any Director may be paid and compensated for services
to the Corporation in a capacity other than as a Director.
(8) Organization Meeting. The first meeting of a newly elected Board shall be held
within ten (10) days of its election at such place and time as shall be fixed by the Directors at the
meeting at which such Directors were elected, and no notice shall be necessary to the newly elected
Directors in order legally to constitute such meeting, provided a majority of the whole board shall be
present.
(9). Regular Meetings. Regular meetings of the Board shall be held at such regular
intervals, without notice, at such place and time as may be determined from time to time by resolution
of the Board. Should said meeting fall upon a legal holiday, then that meeting shall be held t the same
time on the next day which is not a legal holiday.
(10) Special Meetings. Special meetings of the Board may be called by the President on
three (3) days notice to each Director, given personally, by mail, telephone or telegraph, which notice
shall state the time, place and purpose of the meeting. Special meetings of the Board shall be called by
the President or Secretary in like manner and on like notice on the written request of at least
two- thirds (2/3) of the Directors.
(11) Waiver of Notice. Before or at any meeting of the Board, any Director may, in
writing, waive notice of such meeting, and such waiver shall be deemed equivalent to the giving of
such notice. Attendance by a Director at any meeting of the Board shall be deemed a waiver of notice
by him of the time and place thereof If all the Directors are present at any meeting of the Board, no
notice shall be required and any business may be transacted at such meeting.
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(12) Quorum. At all meetings of the Board, a majority of the Directors shall constitute a
quorum for the transaction of business, and the acts of the majority of Directors present at a meeting
at which a quorum is present shall be the acts of the Board except where otherwise provided in or
required by the Declaration, Articles, these Bylaws or by statute_ If at any meeting of the Board, there
be less than a quorum present, the majority of those present may adjourn the meeting from time to
time. At any such adjourned meeting any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
(13). Action taken without a Meeting. The Directors shall have the right to take any
action in the absence of a meeting which they could have taken at a meeting of the Board by obtaining
the written approval of all the Directors Any action so approved shall have the same effect as though
taken at a meeting of the Directors.
(14). Homeowners' Meetings. The Directors shall hold at least semi - annual meetings for
the benefit of the Homeowners. The time and Place shall be determined by the Board and the
Homeowners provided with a fourteen (14) day notice of such meeting.
ARTICLE VI
Officers and Their Duties
(1) Enumeration of Offices. The officers of this corporation shall be a President, a
Secretary and a Treasurer, all of whom shall be members of the Board, and such other officers as the
Board may from time to time by resolution create. Any two or more offices may from time to time be
held by the same person except President and Secretary.
(2) Election of Officers. The election of officers shall take place at the first meeting of
the Board following each annual meeting of the members.
(3). Term. The officers of this Corporation shall be elected annually by the Board and
each shall hold office for one (1) year unless they shall sooner resign, be removed or otherwise be
disqualified to serve_
(4). Resignation and Removal. Any officer may be removed from office with or without
cause by the Board. Any officer may resign at any time by giving written notice to the Board, the
President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at
any time specified therein, and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
(5). Vacancies. A vacancy in any office may be filled by appointment by the Board. The
officer appointed to such vacancy shall serve the remainder of the term of the officer he replace.
(6). Multiple Offices. The office of Vice President and any other office (except that of
President) may be held by the same person. No person shall simultaneously hold more than one of any
of the other offices except in the case of special offices created pursuant to Section 4 of this Article.
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(8). Duties. The duties of the officers are as follows:
(a) President. The President shall preside at all meetings of the Board; shall see
that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds
and other written instruments; and, unless other signatory authority is provided by resolution
of the Board, shall co -sign all checks and promissory notes. The President shall have the
power to appoint committees from among the members of the Corporation from time to time
as he may in his discretion deem appropriate to assist in conducting the affairs of the
Corporation. The President shall have and discharge all the general powers and duties usually
vested in the office of the president or chief executive officer of an association or a stock
corporation organized under the laws of the State of Indiana.
(b) Vice President. The vice President shall act in the place and stead of the
President in the event of his absence, inability or refusal to act, and shall exercise and discharge
such other duties as may be required of him by the Board or as are delegated to him by the
President.
(c). Secretary. The Secretary shall record the votes and keep the minutes of all
meetings and proceedings of the Board and of the members; keep the corporate seal of the
Corporation (if any is adopted) and affix it on all papers requiring said seal; serve notice of
meetings of the Board and of the members; keep appropriate current records showing the
members of the Corporation together with their addresses; and shall perform such other duties
as required by the Board.
(d) Treasurer. The Treasurer shall receive and deposit in appropriate bank
accounts all moneys of the Corporation and shall disburse such funds as directed by resolution
of the Board; unless other signatory authority is provided by resolution of the Board, shall
sign aLl checks and promissory notes of the Corporation, keep proper books of account; and
shall prepare an annual budget and a statement of income and expenditures to be presented to
the membership at its regular annual meeting, and delivering a copy of each to the members.
ARTICLE VII
Committees
(1). Nominations. The Board shall appoint a Development Control Committee and a
Nominating Committee, to be approved by a majority vote of the homeowners. At any time when the
Board has not appointed a Development Control Committee or a Nominating Committee, the Board
shall itself act as, and be and constitute, such Committee not so appointed. In addition, the Board or
the President may appoint other committees a deemed appropriate in carrying out the purposes of the
Corporation.
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(2). Development Control Committee. It shall be the duty of the Development Control
Committee to work with the Developer (Declarant) to review and approve or dis- approve any
and all new plans for construction on Tots in Woodgate as provided for in the Declaration; to
review and approve or dis- approve any and all changes to existing homes and lots in
Woodgate, currently owned by members, which would require a building permit. In addition,
the Development Control Committee shall review and approve or dis- approve all landscaping ,
design specifications and alterations to any and all portions of the common areas of Woodgate.
In the event the Development Control Committee fails to approve, modify or disapprove in
writing a Plan within thirty (30) days after such plan has been duly filed with procedures
established by the Board, approval will be deemed granted. A decision by the Development
Control Committee may be appealed by any Owner to the Board which may reverse or modify
such decision by a two- thirds (2/3) vote of the Directors then serving.
ARTICLE VIII
Financial Affairs
(1). Books of Account. Except as otherwise provided by the laws of the State of Indiana,
by the Articles, or these Bylaws, the books and records of the Corporation may be kept at such place
or places, within or without of the State of Indiana, as the board may from time to time by resolution
determine, but all such books and records shall be open for inspection to any member at any
reasonable time for purposes reasonably related to his interest as a member.
(2). Fiscal Year. Unless otherwise fixed, from time to time, by resolution of the Board,
the fiscal year of the Corporation shall commence on January 1 and end the following December 31
each year; provided, however, that the fiscal year for purposes of assessments may be different than
the general fiscal year . of the Corporation.
(3). Contracts. The Board may authorize any officer or agent to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority
may general or confined to a specific instance; and unless so authorized by the Board, no officer, agent
or employee shall have any power or authority to bind the Corporation by any contract or
engagement, or to pledge its credit or render it liable pecuniarily for any purpose or amount.
(4). Checks. Etc. All checks, drafts, notes, bonds, bills of exchange, and orders for the
payment of money shall, unless otherwise directed by the Board or required by law, be signed by any
rwo of the following officers, who are different persons: President, Vice President, Secretary or
Treasurer. The Board may, however, designate officers or employees of the corporation, other than
those named above, Who may, in the name of the Corporation, execute drafts, checks and orders for
the payment of money on its behalf.
(5). Investments. The Corporation shall have the right to retain all or any part of any
securities or property acquired by it in whatever manner, and to invest and reinvest any funds held by
it, according to the Judgment of the Board.
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■
(6). Reserve for Replacements. The Board shall establish and maintain a reserve fund for -
replacements by the allocation and payment to such reserve fund of an amount determined annually by
the Board to be sufficient to meet the cost of periodic maintenance, repairs, renewal and replacement
of the property. In determining the amount, the Board shall take into consideration the cost of
materials and labor, interest to be earned by such fund and the advice of the Developer, managing
agent or any consultants the Board may employ. Such fund shall be deposited in a special account
with a financial institution, the accounts of which are insured by an agency of the United States
Government, or may, in the discretion of the Board, be invested in obligations of, or guaranteed as to
principal and interest by, the United States Government or one of its agencies.
(7). Assessment Year. The assessment year of the Corporation, unless fixed by resolution
of the Board, shall be the same as the Fiscal Year of the Corporation.
(8). Auditing. Subsequent to the Applicable Date, the books and accounts of the
Corporation shall at the close of each fiscal year be reviewed by an independent accountant appointed
by the Board of Directors.
(9) Annual Budget. By a majority vote of the Directors, the Board shall adopt an annual
budget for the subsequent fiscal year which shall provide for the allocation of expenses in such
manner that the obligations of the Corporation will be met.
ARTICLE PC
Assessments
Each member of the Corporation (other than Declarant) is obligated to pay the Corporation
annual dues and any special assessments that have been voted on by the members and assessed by the
Board of Directors. Each Assessment, together with the costs of collection thereof, shall be the
personal obligation of the Person who was the Owner of the Lot at the time when the Assessment
came due. Any assessments which are not paid when due shall be considered delinquent. No member
of the Corporation may waive or otherwise escape liability for the assessments provided for in the
Declaration or herein by non -use of the Common Area or abandonment of his lot.
(1) General Assessment (Dues). The General Assessment levied by the Corporation shall .
be used exclusively to promote the recreation, health, safety and welfare of the Owners of Lots and for
the improvement, maintenance and operation of the Common Areas
(a) Basis for Assessment.
(1) Unimproved Lots. Lots which are not improved with a residence
are not subject to assessment.
(ii) Improved Lots. Lots which have been improved by the
construction of a Residence thereon, whose Owners are Members of the
Corporation, shall be subject to assessment.
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(2) Method of Assessment By a vote ofa majority of the Directors and approved by the
Members at the Annual Meeting, the Board shall fix the General Assessment (Dues) for each
assessment year of the Corporation. The Board shall establish the date(s) the General Assessment shall
become due and the manner in which it shall be paid.
(3) Allocation of Assessment. Except as otherwise provided, all Lots subject to
assessment shall be assessed equally for the General Assessment as well as any other permitted
expensed incurred by the Corporation in exercise of its duties.
(4) Initial Capital Assessment.
(a) Existing Homes. Upon the Applicable Date, there shall be due and payable to the
Corporation, by the Members of the Corporation, an amount set forth in the Declaration.
(b) Future Homes. On the date of mortgage closing or the conveyance of deed to an
Owner of a Lot ( other than the holder of a first mortgage on such Lot which constitutes a
deed in lieu of foreclosure), there shall be due and payable to the Corporation, an amount set
forth in the Declaration, by the new Owner.
(5) Special Assessments. The Corporation may levy in any fiscal year a Special
Assessment applicable to that year, provided that any such assessment shall have the assent of the
Members who are voting in person or by proxy at a meeting of such Members duly called for this
purpose.
(6) Effect of Nonpayment of Assessments - Remedies of the Corporation. Any
assessment approved by the Members and levied by the Board shall become due within thirty (30)
days after the due date. Any assessment not paid within this time may, upon resolution of the Board,
bear interest from the from the due date at a percentage rate no greater than the statutory maximum
annual interest rate, to be set by the Board for each assessment year The Corporation shall be entitled
to institute in any court of competent jurisdiction any lawful action to collect the delinquent
assessment plus any expenses or costs, including attorneys' fees, incurred by the Corporation, in
collecting such assessment. If the Corporation has provided for collection of any assessment in
installments, upon default in the payment of any one or more installments, the Corporation may
accelerate payment and declare the entire balance of said assessment due and payable in MI No
Owner may waive or otherwise escape liability for the assessment provided for herein by non -use of
the Homeowners Association services or abandonment of his lot.
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ARTICLE X
Amendments
(1). Power to Amend. After the Applicable Date, the power to amend, alter, add to and
repeal these Bylaws is vested in the members of the Corporation; provided, however, that no
amendment or other change shall be made in these Bylaws which conflicts with the terms and
provisions of the Declaration unless the same is adopted by and approved by the members of the
Corporation and others entitled by the terms of the Declaration to vote on amendments to the
Declaration as provided in, and in accordance with the requirements of the Declaration; provided
further, there shall be no amendment of or other change to these Bylaws prior to the Applicable Date
without the consent and approval of Declarant.
(2). Conflicts. In the case of any conflict between the Articles and these Bylaws, the
Article shall control, and, in the case of any conflict between the Declaration and these Bylaws, the
Declaration shall control.
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Dear WHOA Homeowner:
The purpose of this letter is to discuss the fence replacement project along 146`h Street, which we the
homeowners own and are responsible for, and the process we will follow to determine which new fence
design we will build and how it will be funded.
Why the dues increase this year? The 2011 dues have increased from $70 to $200. The $130 increase will
provide for a significant portion of the cost to replace the fence with an all wood shadowbox style fence,
the 3rd option referenced below. Even with this increase, the WHOA board believes your 2011 dues are in
line with those of similar neighborhoods in the area.
Does the fence need replacing? YES The Board has done extensive research and has determined without a
doubt that the existing fence is beyond repair, has serious design flaws, is not within building codes, and
needs to be replaced. In early 2009 we began the project with the thought that we could simply fix the
fence. Boards were warping and splitting, and posts were loose. We had several contractors assess the
work to repair the fence, and all of them said that they could do the repairs but that we would be throwing
good money after bad. In addition, the cost to repair (about $25,000) was close to the cost of a new fence
with a similar look, and repairs were not guaranteed. The major problem with the existing fence is that
none of the postholes were dug deep or wide enough. Therefore, they are not stable, and most of them
are now loose, hence that is why you see the fence leaning. Brian Fulwider of the Architectural Committee
has personally poured over a thousand pounds of concrete to stabilize the posts with only short-term
success.
Past communication with WHOA members: We have tried very hard to communicate this situation to the
WHOA, knowing that it is costly to build a new fence. In the 2009 newsletter, we gave you an update of the
need for replacement. At the annual 2009 WHOA homeowner meeting it was a major topic of discussion.
Most in attendance at that meeting did not like the appearance of the existing fence and thought we
should build a more stylish fence, similar to that of Foster Estates, with the addition of masonry columns,
which should enhance home values. Given that direction, in 2010 we hired Living Spaces, a landscape and
design firm, to work with us on design options. They provided two (2), option #1 and #2, referenced below.
We had a Boundary /Retracement Stake Survey along the fence line by Weihe Engineers and found that the
fence does not properly follow the property lines and is actually on county property in significant sections,
which is bad. At the 2010 WHOA annual homeowners meeting Nick Kinkley from Living Spaces provided an
overview of the two fence designs and the work he has done to date. At this meeting we voted which
design options the attendees would prefer. Overwhelmingly, at a vote of 17 households to 1, we voted for
option #1 (the nicest and most expensive design). All in attendance were in favor of replacing the fence
with an upgraded design. Please see the options below, as they range in cost from $35,000 to about
$138,000.
Where we go from here: We need your input!!! We will hold a special meeting to go over how we got to
where we are, which options we have considered, the milestones and possible timelines, the costs of our
options, and options to build the funds for this capital improvement project. You will be notified once we
determine a meeting time and place_ Please plan to attend, as we will vote on which design option we will
EXHIBIT
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build and how to fund the project. Approximately 2 weeks after you receive this letter you will be
contacted by a WHOA board member to answer your questions and explain the project options.
When will the construction of the new fence be done? The Board would like to target the Fall of 2012,
which is based on raising the needed funds.
How will we raise the money? This depends on which option we pick. As stated earlier, the dues increase
this year should pay for most, if not all, of the least expensive option. The more expensive options will
require 1) multiple years of increased dues, 2) a one time assessment, or 3) combination of these. We will
discuss the options, costs and assessments in length at the meeting, so please plan to attend.
What are the options?
Option #1
— Brick Columns 3'x3'x8' placed every 95' with 7' Shadowbox Style - 8' sections with 6x6 posts
- all wood is premium grade treated pine
- Add additional Brick to dress up current masonry entrance
- Estimated costs $92K - 138K
Option #2
- 7' Shadowbox Style -8' sections with 6x6 posts - all wood is premium grade treated pine
- Offsets for landscaping
- Add additional Brick to dress up current masonry entrance
- Estimated costs $61K - 90K
Option #3
8' Shadowbox Style - Cedar wood
- No Additional masonry work
Estimated costs $28K -35K (these estimates were done in 2009)
Existing Fence Removal Costs are in addition to these costs, and we estimate the cost to be less than $4,000
Which option does the Board recommend? At the last two annual meetings in 2009 and 2010 it was clear
from the neighbors that were in attendance that they wanted a nicer fence than we have today. The Board
recommends option #1. This is the best and the most suitable design for a neighborhood of our caliber. It
also carries a higher price tag. The board would be fine with option 2, but it would require more
maintenance to care for the additional landscaping.
Sincerely,
The Woodgate Homeowners Association Board
5 -02
February 10, 2011
Via electronic mail
And US. First Class Mail
fstrack(ct�,sbcglob al.net
Mr. Fritz Strack
President
Woodgate Homeowners Association, Inc.
1295 Woodgate Drive
Carmel, IN 46033
RE- WHOA Board proposed fence replacement
Dear Mr. Strack:
My husband, Anton (Tony) Schmid, and I are the owners of 1460 Queensborough Drive
in Woodgate and are writing to inform the Board of the Woodgate Homeowners Association,
Inc. ( "WHOA ") of our intention to file a Complaint for Declaratory Relief concerning the
Board's stated intention to utilize homeowners' association dues to replace the fence located
along 146` Street. Before explaining in detail the reasons why we feel it necessary to take this
unfortunate action, please know that we truly appreciate and understand thatyou and the other
members of the WHOA Board serve as volunteers. While we may disagree with the Board's
current plans, we appreciate the other efforts of the Board members to improve the neighborhood
for all concerned.
Approximately, three or four years ago, we wrote to Deborah Paulin who was then on the
Board and explained the reasons why any use of association dues for the repair, maintenance or
replacement of the fence is neither authorized nor legal. The last letter we sent was done after
the Board elected to impose a special assessment for the last replacement of the fence — which
was done approximately 3 or 4 years ago, but done so poorly apparently that the current Board
has decided to once again replace the fence. At that point, we did not pay that special assessment
and, after being repeatedly harassed about it and threatened with a lien, we wrote the letter and
were not made to pay the special assessment. Moreover, after our last Letter, I received a call
acknowledging the correctness of our position. We were hoping the matter was resolved, but
given the recent communications from the Board, we now know that nothing short of a court
order is likely to work.
Specifically, we received your January 25, 2011 letter in which the Board has decided to
impose a $200.00 yearly assessment starting March 15, 2011 against all Woodgate owners for
the stated purpose of accumulating sufficient funds to completely replace the fence. Your letter
mentions a number of options including the most expensive option of installing a permanent
fence at a cost of between $92,000 to $138,000. The WHOA Board cannot impose this financial
obligation on the Woodgate homeowners because the fence is not located in a common area and
EXHIBIT
6 -01
therefore is not the responsibility of the WHOA. Apparently, we axe not the only Woodgate
owners who are unhappy about the Board's plans for the 146th Street fence.
Turning now to the reasons why the WHOA is not authorized to spend any association
monies for this fence, please consider the following facts. The basic premise of your January 25,
2011 letter that "we the homeowners" own the fence and are "responsible" for it is simply
incorrect. There is simply no support for the Board's position that exists either in current
covenants and declarations, any prior versions of these, or, most importantly in the recorded plat
and legal description for Woodgate subdivision. Simply put, this fence is not located within a
Common Area for Woodgate and is therefore not the responsibility of the WHOA.
The most recent declarations and covenants governing what the Woodgate owners and
WHOA may and may not due were recorded January 28, 1998 after we purchased our lot. The
1998 declarations including the provisions for a mandatory association and payment of dues are
therefore not even applicable to us Consequently, unless you obtained our consent to be bound
by the 1998 declarations (which the WHOA did not), we are not required to belong to the
WHOA or pay dues unless we specifically agree to do so. We have been paying yearly
association dues voluntarily, but only because the amounts involved were relatively small and
because we assumed (wrongfully as it turns out) that the monies collected were used for the
benefit of all of the Woodgate owners. After reviewing the latest "accounting ", it is apparent
that the Board has been spending the bulk of association dues to benefit a select group of
homeowners. Thus, we will no longer be paying any association dues.
Even if the 1998 declarations were applicable to us, nothing in these declarations gives
the WHOA Board any authority to significantly raise the dues, or impose special assessments
and use such funds to make improvements to structures located on the private property of a
limited number of homeowners. Yet, that is precisely what you have been doing and continue to
try to do.
Referring you to the enclosed recorded and approved plat for Woodgate, please pay
particular attention to the platted lots along 146th Street. You will notice that there are no
"common areas" anywhere between the right of way of 146th street and each owner's deeded lot.
And the term, "Common Area" is defined in the declarations as "areas and easements defined as
part of the Tract but not otherwise deeded to an Owner." The "Tract" is defined as ... "Woodgate
Subdivision ".
Located within each of the owner's deeded lots along 146th Street there is a 10 foot
drainage and utility easement. I've highlighted that on the enclosed plat so that you can better
see it. As your letter indicates, the survey that the WHOA paid over $1,400 to obtain last year
reveals that the fence is currently encroaching on the right -of -way for 146th Street. Since I know
that Indiana law prohibits installing permanent structures within a right -of way, the fence should
not now be encroaching on the right -of -way. Nor should it be encroaching on the easement area
within each lot owner's deeded lot as I suspect it also does. As you may know, both the earlier
versions of the declarations and the 1998 declarations prohibit the installation of "permanent or
other structures" within the drainage and utility easements. (See, 1998 Declaration of Amended
Covenants and Restrictions, p. 4).
6 -02
At this point, we intend to file a complaint and request a Judgment from the court that
prohibits the WHOA from utilizing association dues for the repair, replacement, maintenance
and insurance expenses associated with this fence. We also intend to ask that the monies used in
2010 for the survey, the landscape designer services, insurance for the fence and any other
inappropriate expenses such as the lawn maintenance on the area between the fence and 146a'
Street be refunded to the association's account. This can be accomplished by way of a waiver of
dues for all homeowners for a specified period of time. Further, together with our neighbors, we
intend to communicate with the other Woodgate homeowners and advise them of their rights
with respect to this issue as well. From our discussions with some of our neighbors, we expect
that very few Woodgate owners will agree to pay the increased assessment..
Finally, because there are no platted common areas within Woodgate, we fail to
understand why certain lawn maintenance expenses were paid for by the association last year.
As such, please provide me with the following documents and information:
1. The WERE engineer survey;
2. Information about what "lawn maintenance" was performed by Zach Reimbold in
2010 and on what areas within Woodgate this service was performed;
3 Information about what areas within Woodgate were provided services by "Spring
Green" lawn care and Vine & Branch; and
4. Detail about what "administrative expenses" were incurred in 2010.
Please have whomever will be serving as the WHOA attorney contact me to discuss a
resolution to the lawsuit as it is really not our desire to have the association incur unnecessary
legal fees and other litigation costs Instead, we are willing to enter into an agreed Judgment that
will address this issue for once and for all, but will also be binding on the current and all future
WHOA board members. I can be reached at my office phone which is (317) 639 -5454 or by
email at mschmid @silegal.com.
A incerely,
o,,,.1 c3 --4 _D
Mary F. Schmid, Esq.
MFS/
Enclosures (via mail only)
322577v1
6 -03
Woodgate Homeowners Association
Fall Newsletter
August 28, 2012
City of Carmel Named #1 Best Place to Live by Money Magazine: copy of The City of Carmel press release.
Carmel was ranked as the number one best place to live in America for cities with a population of 50,000 -
300,000 by Money Magazine. They selected communities based on a combination of strong job opportunities,
the variety of leisure and cultural activities available, great schools, low crime and quality health care. Data
from Onboard Informatics and other sources was also collected. Visits to the communities were also a key
factor in making decisions about the top cities.
Money Magazine first contacted Carmel in June to start collecting data about the City. Shortly thereafter a
reporter was sent to Carmel to interview families in the community and Mayor Jim Brainard. In July,
photographers came to get pictures of the community and families that live here.
"We are extremely pleased and honored that Money Magazine recognized Carmel as the best place to live in
America. With amenities such as City Center, The Center for The Performing Arts, the Arts & Design District and
Central Park we were able to move into the number one spot from ranking 14th in 2010. We improved our
ranking because many of our initiatives that were under construction then are now complete and being enjoyed
by the community. I am especially pleased that the team from Money Magazine took into account the opinions
expressed by the families they interviewed who told them how much they enjoy living in Carmel. While this is a
tremendous honor, it is not a time to sit back and rest on our laurels, but rather a time to take advantage of this
rare opportunity to capitalize on this great story and use it to our advantage in our economic development
efforts to attract top level employees and businesses , " said Mayor Jim Brainard.
WHOA Board: Craig Stiff (President), Mark Wiley (VP), Jim Laverdiere (Treasurer), Shinji "Tak" Takahashi
(Secretary, is now vacant), Marisa Anderson, Steve Purcell (Members at Large).
Lawn Care. Maintenance and Watering: Thank you for weathering through these extreme drought conditions,
and to Carmel's decision not to impose a mandatory watering ban thanks to its supply from an underground
aquifer. It is so nice to see the color return to our lawns and gardens after a much welcomed rainfall.
Although it takes hard work and time to keep our yards looking at our best; and most presentable, please make
extra efforts to remove clutter and excessive growth of weeds and bushes from open view. Let's take pride in
our community and present Woodgate as a subdivision worthy of the Money Magazine's #1 ranking.
Spring Newsletter Correction: It is not against city ordinances to leave grass clippings in the street, but it is the
resident's responsibility to make sure they don't obstruct the drainage in the street. The following is a response
from a city representative. "As far as the grass clippings, we don't have an Ordinance that addresses their disposal
directly. But, like leaf collection, we would inspect to make sure its not blocking storm runoff to the storm drains."
Yard Lights. Home and Neighborhood Security: Thank you for turning on and maintaining your outside
lights. There's been an increase in reported home break -ins and thefts throughout Carmel, especially of break -
ins into unlocked, parked vehicles left unattended for a length of time. After calling the Carmel Police Dept. to
confirm these incidents, it was recommended to be extra careful by locking doors, garages and cars even during
short periods of time, and to not hesitate to report any unusual or suspicious behavior to 571 -2500.
WHOA Directory 2012: We are still working on a revised edition and apologize it's taken so long to roll this
out. There have been a handful of Woodgate home that have sold (could this be a sign the real estate market
coming back ?) and are now warmly welcomed with new members to our community. Because the summer
season is the most active in resident turnover, it is only sensible to update our WHOA Directory in the fall after
the moving season has settled down and going forward, we will release the annual WHOA Directory in the fall
and not at the beginning of the calendar year. So please bear with us a little while longer.
.D
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146th St. Fence Update:
Dear Woodgate Homeowners,
We have very exciting news for our subdivision that has been in the works for the last couple years.
The Fence Committee and WHOA Board has finalized its decision on the type of fence we will be installing and
simply stated will bring a whole new look to Woodgate. 1 know everyone is not thrilled to be accessed money for
the reconstruction of the fence nor am I but, it Ls the duty of the WHOA to keep the Woodgate Subdivision as an
attractive development as it can possibly be. The new fence will provide years and years of maintenance free costs
which is a main factor in regards to the decision the WHOA Board has made. The new fence will be absolutely
stunning and will again bring Woodgate to the forefront of being a very desirable and attractive place to call your
home. The new fence will greatly enhance the value of everyone's property. The style of the fence will also give
Woodgate the look of a Gated Community!
Thank you,
Lyndon Craig Stiff (President, WHOA)
At the last WHOA Board Meeting (July 22), a stone facade fence construction (estimated at $95,000) received
the majority vote among a total of three fence proposals. It was also the median cost of all the proposals, and
determined the most effective. In order to provide easy access to Carmel Utility and for other repairs,
installation of I -Beams would also be required to the stone /concrete fence construction, at not additional cost.
According to the WHOA by -laws, along with attorney confirmation, the ownership rights of the 146th St. fence
falls into the hands of WHOA. Thus is also the responsibility of WHOA for its maintenance as an asset of the
community of Woodgate and its residents.
The WHOA Board voted as a majority, with one abstention, to pursue the stone facade fence construction.
This is a photoshop edited picture of our Woodgate fence line. The actual fence will be a grey color tone.
More photos of the stone facade fence construction will be on display for public viewing inside the common
area at the Stony Creek community pool from August 28th to September 3rd,
The WHOA has a current reserve of approximately $46,000, of which about $30,000 was raised from the 2011
annual dues ($70.00), plus the additional $130.00 fence assessment, and the remaining $16,000 was carried
over from previous years reserves. An additional $65,000 would have to be raised, $50,000 for the concrete
fence balance and a $15,000 cushion to prepare for any unforeseen budget overruns. The WHOA Board will
require another $225.00 fence assessment in September 2012, and then another $225.00 fence assessment in
November 2012. The 2013 annual dues will remain at $70.00.
This is the direction the WHOA Board has determined is the best long term plan for the Woodgate community.
d\
Sincerely,
The WHOA Board
cur l
u..> � c
Woodgate Homeowners Association
Carmel, IN 46033
Date 9 -05 -2012
To: Woodgate Homeowners
From Jim Laverdiere, Treasurer, WHOA
2012 Major Improvement Assessment Invoice
Fence Replacement Project Assessment
Past due 2011 Assessment
$450.00
$130.00
Dear Woodgate Homeowner,
The WHOA Board has declared that an assessment will be placed on all members of the
Association for fence construction and materials. This assessment will yield $63 450 00 with 141
families participating. WHOA currently has $46,094.00 in the savings account. At the end of the
assessment, the total available for the fence project will be approximately $109,544.00. Any
remaining monies will be returned to the homeowner once the project is completed.
Please remit checks, payable to the Woodgate Homeowners Association, in the amount of $450.00
in one payment, or you may make two payments of $225.00. The second installment will be due
November 30, 2012. Those wishing to make two payments will receive a second invoice on
November 1.
Please include your address on the check. Please DO NOT place unstamped envelopes in
Treasurer's mail box. Mail remittance to Woodgate Treasurer, Jim Laverdiere 1160 Woodgate Dr.
Carmel, IN 46033. When making your payment, please complete the following information for our
records:
Name
Address
Phone number
Email address
2012 assessment due September 30
2012 assessment due November 30
Total 2012 assessment
Total2011 assessment
Total due
cerely,
$225.00
$225.00
$450.00
$130.00
$580.00
J t . verdiere, Woodgate Treasurer Craig Stiff, President
3 848 -9912 317 -571 -0210
EXHIBIT
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