My HOA will not allow me to plant a small garden , though there are no rules against it in my bylaws book. What are my options?
4 attorney answers
I would double check the HOA rules and regs but it actually sounds like you have done so. I represent a few Chicagoland HOA's and while it is truly a pleasure often to work with these folks, sometimes you do run into shall we say Little Stalin's who think they can exceed their authority.
If the HOA has a seasonal planting addendum that has been filed with the McHenry County Recorder of Deeds, than to borrow from my past life as a US Marine - "It is often better to beg forgiveness than ask permission."
Your HOA must have authority and the member's must vote to approve changes that would restrict typical residential rights such as growing a few tomato plants. Obviously commercial farming would exceed the zoning of your residential home, but for what you are describing, I truly do not see much of an issue.
Please realize that your HOA is a volunteer organization composed of your neighbors. The HOA is not in a position to "discourage gardening." That is a personal opinion of a HOA Board Member(s) masked as some sort of false legislation. At the same time, you can lose the war and win the battle. If you want a garden, quietly plant one in your backyard this spring and do not make it an issue. If you start raising heck over this situation, than you may just find out the HOA decides to clarify their discouragement into a codified covenant of the HOA.
When clients come to me with these issues, I often times challenge them to consider running for their HOA board themselves so that they can be a voice of reason.
I have not read the HOA by-laws and addendum, and am only responding to what you have written. I am a bit baffled as to how a backyard garden would be an architectural review issue unless you were seeking some variance to build some sort of garden box that is prohibited by your HOA or McHenry rules.
Best of luck with your situation. I would consider and advise you to obtain a copy of your HOA rules with the various addendum's (most HOA's have these in PDF) format and consider retaining an attorney to review these documents to make sure there is not an existing compliance issue. Many attorneys, including myself routinely review records such as these for a very reasonable sum.
When I review HOA bylaws with a specific question such as yours, I not only provide my opinion one way or the other, I provide the client with a letter which cites the rules that empower/do not allow the desired activity and any relevant city of state laws as well.
This answer is marginal legal advice and does not constitute an attorney-client relationship. Every client and case is unique. The best advice is to always consult with an attorney. Free legal resources at www.ZippToCourt.com
A lot depends on where the garden would be. If in a common area/ common element the HOA has more control. And it sounds like it. Gardens are pretty in season but in winter become bare patches, muddy, etc. you might be able to win the hearts and minds of the board of you gave them security to restore the plot seasonally but even that adds a burden to their responsibilities. If there are enough people behind you however there are procedures to try to amend the rules. Worst case is to vote out the naysayers and vote in a more favorable board.
When you are confronted with a board that is unwilling or unable to operate within the confines of the association's governing documents or the statutes and negotiations have failed, you have the following options:
1. If your state has an agency that oversees and regulates HOAs, contact same and file a complaint;
2. Create an ad hoc group of like-minded neighbors to hire a lawyer and confront the board;
3. In the event #2 is not a possibility, hire a lawyer on your own to confront the board and possibly pursue injunctive relief;
4. Mount an effort to recall the board;
5. Wait until election time and vote in a more responsive and responsible board; and
6. Failing all else, move.
If you are looking to plant a vegetable garden, why not look into one of the many cooperative properties in your area that lease out small plots of land for gardening? apologize that I don't know the exact term but such property is frequently offered by park districts, universities and colleges as well as local municipalities.
If you are looking for a flower garden, why not plant in pots?
Yours is not really a legal question unless you think suing your HOA will get you somewhere, which is very unlikely. Good luck.