The Board meeting commenced at 4:00PM. The following board members were present: President, Paul Zacharias, Vice President, Debbie Clark, Secretary, Peggy Steele, Treasurer, Fred Black and Operations manager, Joe Bowen, who was late but attended most of the meeting.. The following homeowners, all invited by an e mail message and a notice posted on the community bulletin board 48 hours in advance, were present: Bob Hamby, Harold Clark (Sara Clark was present for a portion of the meeting), John Bonner, Frank Carelli, Charles Vreeland, Susan and Gary Fairley and Mike and Karen Joyce.

The Board agreed to have a special Board Meeting to review a request from Mike and Karen Joyce to rescind its June 2006 approval, given to Charles and Teena Weiss, owners of Lot 6, to build a screened enclosure over their pool deck which extends about 15 feet beyond the 40 foot width of the Weiss’ new home. This request is being handled as an emergency matter in that construction is underway.

Paul asked that the board members waive the right to a 72 hour notice. With no objections from Board members the meeting was held.

Paul distributed the letter received from Mike Joyce (including a letter to the Weiss’. ) which states that the owner of Armand Beach Estates Lot 6 (Weiss) has begun to build a pool deck which extends beyond the 40 foot limit in width prescribed for Lots 1-13 in Article IX, Section 8 of the HBEHOA C&Rs. The HBE board approved the plans for the deck and enclosure screening in June, 2006 and the Joyces are recommending that the Association rescind its approval for this construction. Also attached to the letter received from the Joyces’ are copies of 2 documents: 1. A letter sent to owners of Lot 6 and 2. a copy of the deed restriction placed by the original owner of lot 6, which was Stajo Construction, that imposed restrictions on the placement of residences on lots 6 and 7 to ensure that such residences would not obstruct the Joyce’s ocean view. Also enclosed with the material handed to board members were (1) A copy of a photo taken by Mike Joyce from the second floor of his home showing his ocean view and the Weiss’s pool deck under construction and (2) The plans for the pool deck and screening that had been submitted to the Board for approval in June 2006. The Board then engaged in a discussion with those in attendance, beginning with Mike Joyce.

Mike said he feels that the extended pool deck is clearly an appurtenance extending beyond 40 feet and should not have been approved. He fears that in the future a higher structure might be built on the extended pool deck slab, He said that the slab violates the limits as set forth in the C&Rs and therefore the approval given should be rescinded and the property owner told he must bring the slab within the 40 foot limit. Property owners should not feel as though they can do anything they want on their land without approval . Gary Fairley said that if a structure exceeding the 40- foot limit is approved it will set a precedent for the future and the intent of the C&R as set forth in Article IX, Section 8 was to provide an unobstructed view of the ocean from homeowners on the westerly side of Ocean Dune Circle.

Paul asked Mike if landscaping poses a problem for viewing the ocean. Paul said that in the picture submitted by Mike that the trees on the lot south of Weiss appear to be an obstruction. Paul said that to his knowledge, there is nothing in the C&Rs limiting the planting of trees and shrubs.

Karen Joyce said that she feels that their privacy (which they paid a lot of money for) will be affected when people start to use the extended pool deck.

Debbie Clark asked if the restrictions on building would be identified if a title search was done. Mike searched the records and the restrictions are on record. Debbie said that the builder knew about the restrictions. Mike said that if the owner had done a title search he would have known about the restrictions. Debbie asked how the pool permit was issued by the County. Paul read the legal statement saying that no residence may be built within 26 feet from the south property line on lot 6. Paul asked Mike if the dwelling meets that requirement. Mike said that he thought it did. Paul asked Mike if he had an issue with the dwelling, or only with the extended pool deck.. Mike said that the pool deck slab was the issue. (Amended Feb. 2, 2007)

Paul asked Karen if she felt that her privacy would be invaded it people were to use tables and chairs in the backyard area between the 2 houses. Karen said that the patio (pool deck) is clearly in violation. She said that Paul is now asking if they mind if its just a patio slab and nothing else. In her mind it will not always be just a patio slab…She said that there is no patio in back of the house, that’s why they built the patio onto the south side of the house. She said that’s why the patio will be used and it will affect her privacy when she is using her balcony. Paul said that there is a covered patio behind the house, between the house and pool. Mike said that the raised slab (pool deck), as built, is obviously intended to be part of the house…He said that if patio stones were used at ground level it would not be a problem. Mike feels that the raised structure will present a problem by obstructing his view.

John Bonner asked who approved the plans for the pool. Fred asked Karen if she was on the board when this was approved. Karen said she was but never asked to see the plans as the Architectural committee felt that the plans that were submitted met the guidelines.

Debbie said that Karen did respond to the e mail sent inquiring of board members if approval should be granted to the building of the pool and also in the same e mail the building of a fence on a lot on Mahoe S. Karen did respond to the fence in question but never gave a response about the pool. Karen said that members of the board felt that if the ARAC felt it deserved approval, the board usually gave their approval and no further questions were asked. Debbie said that if a house across the street from her was being built, she would certainly be interested in seeing the plan. Karen said that this is an error and that’s why we have insurance, because people make errors. Karen feels that the building across from her devalues her property. She said that there are 9 other houses built on the ocean side and not one of them has anything built between them. They bought their lot with the assurance that nothing would be built between houses on the ocean side obstructing their view. Debbie feels that there were a lot of "balls dropped" along the line, not only with the approval given by the ARC and Board. Karen feels that if the builder had honored the C&Rs (as written by him while developing the area), this would not now be an issue.

Paul said that the homeowner’s association board did not exist when the 40- foot limitation was put into effect. He said that the intent is to clearly create unblocked view so the lots on the westerly side of Ocean Dune Circle can be called an "ocean view lot". Paul asked if some of the little fences that are on some ocean-side properties on the road extend beyond the 40- foot width limit. Fred said that some are beyond that and Paul said that there is a gazebo on lot 1 and that can be called an "out building". There is a driveway on the ground that extends beyond the house on lot one which is an appurtenance to the house. Frank said that the builder changed the C&Rs in order to include the driveway. Paul asked Frank if there was any relationship with that decision to the 40- foot restriction. Frank said that the 40 foot restriction was never changed but he recalls it being said that the driveway was extended because there was no room for parking on the beach road. He did say that the parking restriction was changed in the ninth amendment allowing driveways to be built alongside the house on the beach road only. Frank said that no body knows how the driveway got built on the house in back of him. Paul read Article 3 section N saying that eliminated the prohibition against paved parking strips. Apparently the driveway is not a view obstruction issue. (At this point, Joe Bowen joined the meeting.)

With no more comments from the membership, Paul reviewed the facts about how the Board decided to approve the pool and deck and enclosure were made.

Paul said these procedures were followed for the Weiss’ pool proposal. Jim Morelewicz an ARAC member reviewed the proposal and sent his recommendation by e mail as shown in documents received by Board members. Paul read the e mails from Jim Morelewicz concerning the two requests: Vegerano for a chain link fence and Dr. Weiss for a swimming pool. Paul forwarded this e mail to board members on June 12 stating that he planned to issue approval the next day unless any Board member had an objection. Paul received an e mail on the same day from Karen Joyce approving the fence even though she said that wood fences or artificial wood fences look nicer. Karen’s response did not address the Weiss pool proposal. The same day, Paul sent a note back to Karen saying that the C&Rs only prohibit chain link fencing in the front yard and there is at least one house in the community that already has chain link in the back yard. On June 12, Peggy Steele sent a note saying that both requests for Weiss pool and fence in back of Vegerano are OK with her.

On June 15 Paul sent a message to Stan and Josh saying that on behalf of the Board, he was writing to let them know that the plans for the pool and enclosure for the Weiss home at 11 Ocean Dune Circle had been approved by the Board, noting that the ARAC had mentioned the fact that the description of the enclosure indicated 2 doors and the drawing showed 3 doors and either version is acceptable. He asked that this e mail be shared with Dr. and Mrs. Weiss. A note received from Jo Ann Rosenbaum said that she will pass this on to Stan and Josh. This is the correspondence that shows that procedures were followed making the decision.

Paul asked the Board if this was the right decision or should the decision be amended or rescinded? What are the consequences by a decision being made?

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Fred asked if the other 2 board members (Sara Clarke and Joe Bowen) responded to the e mail request. Paul said that the other members did not respond.

Paul said that in our C&Rs there is virtually nothing with respect to pools and pool enclosures other than that installation must meet the county code. As a result, architectural review of a pool proposal is generally a straightforward approval because there is no criteria that must be followed. The extension of the enclosure and the pool deck beyond the 40- foot width of the house, in hindsight, should have been noticed.

Fred asked about the restriction being in the deed. Mike Joyce said it is in the county records and on his deed. Paul read Section 8 in our C&Rs which state that "the maximum width of a dwelling unit, including all garages, out buildings and other appurtenances of any kind, nature or description, on lots 1 through 13 inclusive, shall be a maximum width of 40 feet. No dwelling unit (with accompanying garages or other out buildings or appurtenances) constructed on Lots 1 through 13 inclusive, may exceed 40 feet in width. This restriction does not apply to lots 14 through 29 inclusive." Lots 14 through 29 are on the west side of Ocean Dune Circle. Paul said that the question is "what is an appurtenance". Also Paul asked if there is an "intent" issue as relating to the reason for limitations to maintain an ocean view. He said that low fences could be considered an appurtenance. He used the example of putting decking across the whole back yard, would this be considered an appurtenance? Would it be in violation as it would be below the berm line and doesn’t block the view? Debbie said that concrete can be pretty permanent, a fence can be removed.

Paul said that he has had conversations over the past few days with Mike, Dr. Weiss and Stan. Stan told Paul that the intent was to clearly allow ocean view for lots on the westerly side of Ocean Dune Circle. Stan said that in his view, the pool deck patio in question does not obstruct the view toward the ocean. It was not his intent to prohibit that type of item Paul said there is no restriction on landscaping. Any trees or shrubs could be planted to obstruct the view. Paul said that an appurtenance is something connected to another--an appendage is another word that could be used.

Paul said that the board approved, in good faith, what we thought was an appropriate approval, for the Weiss’ to go ahead with their plan to extend the pool patio out and an enclosure. The enclosure was going to be low in the patio area and higher in back of the house. Paul said that the pool enclosure could be a view obstruction. Paul said that Dr. Weiss had indicated a willingness to reduce the size of the pool enclosure to at or near the house line. Paul showed the board members the plan for the pool and said that by extending a straight line from the edge of the house it would allow only 33 inches to walk between the enclosure and edge of the whirlpool where the primary entrance to the whirlpool is located. Dr Weiss said that if he had been aware of the 40- foot limitation for the enclosure, he would have made the pool smaller to allow walk space. Paul said that Dr. Weiss would like to have a 3’-6’ walkway between the pool edge and the enclosure which would mean that the enclosure would need to extend beyond the edge of the house by up to 2 feet. The area beside the house in front of the extended pool deck is going to be graded, so that the extended pool deck will be almost at ground level on the side facing the street. Debbie said that the pool deck slab is already high and wonders if grading is even permissible.

Paul suggested two options:

Joe Bowen asked how do we rescind an approval by the Board, acting on the advice of the ARAC.. Joe asked why the builder did not do his own research. Paul said that possibly Stan did not feel that the extended pool deck would block the view and was not therefore a violation of the C&Rs. Stan has said that the screening could be viewed as an obstruction

Fred said that a mistake has been made and asked how we correct it He feels that privacy—i.e., that the Joyce’s view would include people on the Weiss’ extended pool deck-- is not an issue….He hopes that an agreement can be reached and approval made to please both parties.

Susan Fairley said that all homeowners are supposed to read the C&Rs before building. The C&Rs state very clearly the limitations and she feels that if a change is needed that the builder or owner ask permission to make a change. Susan said that the Board will not consist of the same members from year to year and if exceptions are made by this board, the next board may extend the exception, adding on to the limits set by the C&Rs.

Mike said that different views are not relevant to this issue. What is important is the reading of the C&Rs which clearly state the limitations of buildings on Ocean Dune Circle. If the Board does not abide by the C&Rs they are liable to a lawsuit. Mike said that before the pool deck slab was there, they could stand on their front porch and look across and see the ocean, but now they cannot see the water from the ground level. If people put chairs and umbrellas, etc.on the patio slab, they will not have any view of the water from the first floor. He emphasized that it is the Board’s role to enforce the C&Rs that are in place and not try to interpret them

Paul said that 1 legal document refers to residence, the C&Rs refer to a 40 foot limit with appurtenances, outbuildings, etc. Frank said that the C&Rs should not be interpreted in our favor. He gave as an example the lots on Armand Beach Drive where the owner has 4 dogs and the house is built over 2 lots. Frank Carelli says that the developer should be the one being sued, not the board, as he is well aware of the C&Rs Frank says if we let the pool stay as it is it is in violation of the C&Rs. Debbie said that she doesn’t believe that the pool is in violation.

Harold Clark said that he knows that the board approves fences and things when they are already up. He asked how many members voted on the pool area being put on Weiss property. Paul said there was no vote . Harold said that we must have voted over the phone. Paul again explained how the ARAC acts when a plan is submitted The plan submitted for approval is put before all members of the Board at the same time that the members of the ARAC receive it. Each board member had the opportunity to review and question the request. Karen and Peggy responded and the other board members did not respond to the request, but all had the opportunity to do so. Paul said it was set up this way so a board meeting was not necessary to approve a routine request, as usually the request needs a fast response. Harold said he feels that the board should meet and discuss the request so a mistake would not be made. He asked why all this stuff has to be done so fast.

Mike said that if he feels that if the board does not act to have the extended pool deck removed then all of the west side of Ocean Dune Circle will react. Mike said that his particular lot with its view is worth lots of money. He would not be surprised if all residents on the west side of the street would not contribute to funding a lawsuit and that would be a serious issue.

Paul said that he will contact our insurance company that we may be facing potential litigation. Fred said that Dr. Weiss should be contacted to stop work until a resolution can be made.

Paul asked Mike if he is willing to make a compromise with Dr. Weiss. Mike wants the extended pool deck removed as he does not want to see umbrellas, chairs, tables etc. on the slab. Harold asked if the developer or the pool company get a permit to build the pool area. Mike did not know who got the permit and Paul said that it probably would not have been issued if the Board had not approved the pool plans. Mike said that the governing statute was pretty clear about the 40 foot limitation and it should be enforced. Mike said he is not excluding a compromise. Frank said that not only that street but other homeowners feel that the board does not have the right to change the C&Rs.

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Paul said he agrees with the screening around the pool would be considered an obstruction of the view but he questions whether decks and fences and driveways and other low level items are appurtenances subject to the C&R limitation since such items have been allowed. Paul said that Dr. Weiss could say that he will plant trees on the property that will essentially block the view. Mike said that there is nothing in the C&Rs to prevent him doing that and he would have to live with it, but that would still retain the 40 foot width as required by the C&Rs.

Karen asked why we don’t get legal advise on rescinding the approval that was given. She said that she is not denying the Weiss’ a pool or patio, and she asked how can a compromise can be made when they are clearly wrong in having the pool deck patio extend beyond the 40 foot limit.

Fred asked if the patio was taken out if the steps could still be in place. Mike said they could. Mike also said that if the concrete slab was removed and a ground level patio put in, there would be no problem as long as it wasn’t a permanent structure.

Joe said that he feels that legal advice should be sought as we (the BOD) is not able to come up with a decision at the present time. Joe made the motion to hire an attorney to review the C&Rs and advise the board how a resolution can be made. He also said that a letter should be sent to Dr. Weiss to let him know that we are in the process of doing this and ask him to please hold up on future work until we are able to get back to him as there is the possibility that we might be rescinding the original approval.

Harold asked if we had talked to Dr. Weiss. Paul said that he has talked to him and he is willing to move the screen in but Mike wants the concrete slab removed so no structure will be built on it in the future. Bob Hamby said that he feels that Stan is responsible for keeping within the 40 foot limit and remarked that it is amazing how actions by Stan can turn neighbors into enemies.

Paul asked if any one had anything more to say and then closed the discussion.

The motion that Joe made was adopted and Paul will draft a letter to Dr. Weiss and contact will be made with an attorney. Paul will also contact Hayward & Brown, who carry our liability insurance and alert them as to a possible lawsuit

Paul apologized for missing consideration of the 40 foot width limitation when the Weiss pool, deck, and enclosure were reviewed. He will try to work out a reconciliation.

The meeting was adjourned at 5:30 PM

Respectfully submitted,

Peggy Steele, Sec. HBEHOA