By Phil Trubey
September 7, 2021
Two are wood, two are Hardie Board, one is a composite plywood and stamped steel board with Hardie Board batten (often used on barns).
It was so close. At the September RSFA board meeting, director Laurel Lemarié had proposed director Greg Gruzdowich’s introduced motion to repeal board resolution 2019-103 that had banned Hardie Board as an exterior material for the past 2 1/2 years. It was seconded by Lorraine Kent. And then … director Rick Sapp (interrupting Lemarié, I might add) raised enough objections to cause the rest of the board to meekly follow his lead, again, and withdraw the Hardie Board ban repeal. This is the second time in a row that Gruzdowich tried to repeal the Hardie Board ban with Sapp throwing up road blocks.
Hardie Board (or more generically, fiber cement board) is a composite exterior building material that can look indistinguishable from wood, yet is superior to wood in that it is fireproof and requires far less maintenance.
In the end, building commissioner Maryam Babaki was tasked to work with the Art Jury to come up with specific language on an alternate resolution concerning the use of wood and Hardie Board. Depending on the wording of this resolution, Hardie Board could remain banned, be allowed in some cases, but end up being defacto banned, or be allowed subject to Art Jury approval as was the case for the 90 years before 2019.
Your Input Still Not Received
While recently talking with Sapp, he dismissed the RSF Post’s poll on this issue (where 92% of you wanted the repeal of the Hardie Board ban), and also stated that he doesn’t think the membership cares about this issue since he hasn’t been receiving member input about it recently.
So it seems we need to remind the board, again, of what you think of Hardie Board. Should the board allow its use subject to Art Jury approval as was done before 2019? Please take one minute and click this link to send an email to firstname.lastname@example.org (add in a CC to email@example.com if you’d like) telling them what you think.
Delving Into The Details
As I stated the last time I wrote about this debate, the argument against Hardie Board is based on a flawed legal interpretation of the Protective Covenant (PC).
Sapp (who voted for the ban back in 2019) uses this paragraph in the PC to justify the ban:
Par. 155. (c) Materials, color and forms must be used honestly, actually expressing what they are, and not imitating other materials (such as tin, tile, wood and sheet metal, shamming stone, etc.), as for instance, wood being treated frankly as wood and not in imitation of stone, wherever it is used.
Since some types of Hardie Board are made to look like wood, it is imitating wood and thus should be banned.
The problem with this argument is that the Association has routinely and consistently ignored this paragraph for many other exterior applications.
The most notorious example is our faux wood shakes and shingles. After wood shakes and shingles were banned by CA law, the Association simply ignored this paragraph and allowed faux wood shakes and shingles (made of resin, plastics, or lightweight concrete) to be used. And no, CA law did not “trump” or “supersede” this PC paragraph since there is no law that says we must allow faux wood shakes and shingles. Asphalt shingles are lightweight and would work, but they don’t look as nice, hence the Association’s common sense blind eye.
Windows are another common treatment that no one seems to have a heartache over. Wooden windows need a lot of maintenance and upkeep, but newer fiberglass or metal clad windows that look like wood are much more likely to be used for this application.
Building a deck? Like sanding and repainting every five years? No? Then you’d probably look at composite lumber products that look like wood, but perform much better.
Exterior stone is a good one too. Even though paragraph 155 explicitly disallows “shamming stone” (something other than stone made to look like stone), it is very common to use concrete with applied finishes to make it look like marble, river rock, or generic boulders.
The PC Is Composed Of More Than One Paragraph
So is the Association in violation of its own PC, leaving enforcement of any of its provisions in doubt? That’s what worries board president Bill Weber in this debate about Hardie Board. He thinks that if we don’t clamp down on Hardie Board usage (conveniently ignoring all the other exceptions), then somehow the entire PC is invalidated.
But the PC is composed of more than one paragraph. Here’s a legal argument that allows for all the above “exceptions” to paragraph 155.
Par. 159. Materials: Plaster, adobe or stucco exterior wall surfaces of a durable construction or concrete, stone or an approved artificial stone are to be preferred. Texture and finish of plaster or exterior to be approved by the Art Jury for each individual case.
This gives wide latitude to the Art Jury to approve durable exterior materials (as Hardie Board is). It even gives an example of “artificial stone” as something that is allowable even though that is specifically disallowed in paragraph 155 (“shamming stone”). And Hardie Board is certainly a “durable” material, and can look better than concrete which is referenced here as allowable.
Par. 14. Section 13 (As Amended in 1939). Maintenance of Health Safety and Welfare. To maintain the health, safety and general welfare of people residing on said property, and to prevent danger from fires, street traffic, camping and picnicking, or other hazards to life and limb or property, the Association shall adopt such rules and regulations as it may from time to time deem advisable and necessary and all parts of said property shall at all times be maintained subject to said rules and regulations; provided, however, that all such rules and regulations shall be in addition to any regulations of County, State or other duly constituted public authority […]
This paragraph explicitly gives the board the authority to enact regulations to prevent danger from fires. Allowing homeowners to renovate their wood houses with fireproof Hardie Board surely falls under this provision (credit Rick Sapp for mentioning this provision in a recent board meeting).
But the real kicker is this paragraph. The PC drafters realized they were not omniscient and wanted successive Association boards to be able to interpret the PC as it makes sense at the time:
Par. 180. Section 10. Interpretation and Enforcement by the Association. The Association in its own name so far as it may lawfully do and/or in the name of any lot or parcel owner subject to its jurisdiction, shall interpret and/or enforce any or all restrictions, conditions, covenants, reservations, liens, charges and agreements herein or at any time created for the benefit of the said property or of any property which may thereby be expressly made subject to its jurisdiction by the owners thereof, or to which said lots or any of them may at any time be subject. In case of uncertainty as to meaning of said provisions or of any provisions of this covenant, the Association shall (except as otherwise provided herein and except as to the provisions of Article III hereof which shall be interpreted by the Art Jury) in all cases interpret the same and such interpretation shall be final and conclusive upon all interested parties.
This is a major bit of power granted to the Association (and Art Jury, notice) to be able to interpret the PC as they see fit. They should be guided by the PC and think hard about straying too far outside its confines, but they nonetheless have the power to do so when it comes to common sense interpretations of the PC.
The End Result
In talking to Sapp, his latest thinking is that he would be willing to vote for a relaxation of the Hardie Board restriction as long as it would continue to disallow Hardie Board that had a wood grain texture.
First, this would be an operational nightmare for the Art Jury (“Is that texture wood grain, or something else that almost looks like wood grain?”). Second, it could result in a de-facto ban on Hardie Board anyways. A completely featureless Hardie Board is a pretty modern looking exterior siding and could be rejected by the Art Jury on aesthetic grounds.
Look, let’s cut to the chase. There are probably four people on the board (Lemarié, Kent, Gruzdowich, and Comstock) who favor a Hardie Board ban repeal. Are they going to find some intestinal fortitude and vote for a repeal? I don’t know. But this kind of situation is why when I was being asked for voting recommendations for the last board election, my answer was always “Who do you think will think and act independently?”.
Please give your comments to firstname.lastname@example.org (and copy email@example.com if you’d like) if you want your voice to be heard.