Bay Breeze Point
“A Premier Waterfront Community”
HOA Fencing Study Group
January – September 2010
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Phase 1 -- Study Group Objective
• Identify legal status of two areas of fencing:
– Black metal fencing that runs along the waterway
behind several homes on Bay Point Drive
– White masonry fencing that runs along 30th Bay
behind several homes and around the entrance to
Bay Breeze Point on Pleasant Avenue
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Phase 1 -- Study Group Overall
Conclusions
• HOA has NO ownership of, liability for, responsibility for, or
access to the black metal fence behind the eleven (11) Bay
Point Drive homes/lots.
• HOA has NO ownership of, liability for, responsibility for, or
access to the white masonry fence along 30th Bay and at the
Pleasant Avenue entrance with the exception of the easement
pertaining to the four (4) sections south of Pleasant Avenue
around the pumping station.
– Access to the white masonry fence located on City of Norfolk property
was granted to the HOA via a variable perpetual landscape easement
(adjacent to Pleasant Ave) and a four foot landscape maintenance
easement (adjacent to 30th Bay). (June Update: Easements were
issued to Developer Moore and never transferred – City of Norfolk is
working the issue.)
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Phase 1 -- Recap of White Masonry
Fence Findings & Conclusions
N
1994 was private property
North Wall 2002 was private property
2002 wall built by Letchworth
2010 is private property
Bay
Breeze
1994 was private property Point
Entrance – North Side 1994 wall built by Moore
2010 is private property
Pleasant Ave
1989 was private property
Entrance – South Side 1990 transferred to city City Pump House
1994 wall built by Moore w/easement
2010 is city property
1994 was private property
South Fence/Wall 1994 wall built by Moore
2010 is private property
30th Bay St
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Phase 2 -- Study Group Objectives
• Identify potential options for white masonry
fence/wall given its legal status, e.g., maintenance
• Consolidate potential options for presentation to
HOA for consideration and/or approval
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Phase 2 -- Initial Plan of Action
• Group Meetings
– June 21 -- Initial meeting: recap Phase 1 study; discuss way
ahead for Phase 2
• June 22-July 5: Group members develop options; then options are
consolidated for July 12th meeting
– July 12 -- Discuss consolidated options and identify items
for further evaluations, etc.
– August 16 -- Finalize options for presentation during
September 9th HOA meeting
• Draft Phase 2 Executive Summary
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Backup Slides
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Study Group Process
• Base Study and Results on facts
not opinions
• Identify legally binding items
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Study Group Actions
• Study Group Members – Jerry Baker, John Bergman, Jim
Casey, Fred Sciulli, Fran Scott, and Steve Woll
• Six group meetings held between January – May 2010
• Over 120 man-hours researching and discussing fencing legal
status
• Group will provide the results of its study to the 2010 BBP
Board of Directors on May 17, 2010
• Group will help the BBP Board of Directors develop and
execute a HOA-wide roll out of the study and its results which
will culminate with a HOA special meeting in September 2010
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Study Group Actions
• HOA Insurance Policy – talked with agent who initiated
fencing insurance coverage (agent is still in place)
• Norfolk Clerk’s Office – visited the Norfolk Clerk’s Office on
February 8/9, March 25/26, and April 8 to search for BBP
related documents that may have been filed in that office
• City Attorney’s Office – discussed white masonry fencing on
City of Norfolk property
• Group Members met with or requested information from
several HOA members.
• Researched pertinent documents
• Utilized City of Norfolk property website –
“http://gisapp1.norfolk.gov/norfolkair/”
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Study Group Findings
Chronology of Key Events
• Circa 1989 – Developer Moore in charge of future BBP Property
• Circa 1990 – Developer Moore dedicates property by Pleasant Ave
Entrance to City of Norfolk for a pumping station and obtains easement for
wall & landscaping on that property
• Circa 1994 – Developer Moore constructs white masonry fence along 30th
Bay from Pretty Lake Ave up to Pleasant Ave and 4 sections north of
Pleasant Ave
• Circa 1998 – Developer Letchworth takes over
• Circa 2000 – Black metal fence installed
• Circa 2002 – White masonry fence extended from 4 sections north of
Pleasant Ave to Lot 86 (9629 DR)
• Circa 2003 – BBP homeowners take over HOA Board of Directors and use
same Management Company as Developer Letchworth (UPA)
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Developer Installed Fencing
Phase One Phase Two
• Black Metal Fence along
Little Creek Entrance
Channel
• Extended White
• In place, White Masonry Masonry Fence from
Fence along 30th Bay and 4 sections north of
on each side of Pleasant Pleasant Ave up to
Ave (4 sections on North Lot 86 (9629 DR)
side)
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Information at Start of Study
• Black Metal Fence • White Masonry Fence
– Runs behind eleven (11) – Runs behind 14 homes
Bay Point Drive homes & and 1 vacant lot and
one (1) vacant lot around the entrance to
Bay Breeze Point
– HOA maintains an
insurance policy that – HOA maintains an
includes the fence insurance policy that
includes the fence
– Fence is similar to Bay
Point fencing – HOA funded a major
repainting – circa 2004
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Information at Start of Study
• BBP Covenants, Restrictions, Reservations, &
Easements addresses “Common Areas” and the
responsibilities associated with them, e.g.,
– Article I, Section 1.8 – defines “Common Areas” as the real estate
specifically designated as “Common Areas” on recorded plats of the
Properties … executed by the Declarant and recorded in the Clerk’s
Office
– Article IV, Section 4.1 – Obligates the HOA for “Common Areas”
conveyed to the Association and all the improvements thereon
– Exhibit C ,“Common Area” – None Listed
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Information at Start of Study
• City of Norfolk
– No documentation transferring ownership of any
property to the HOA had been located within the
Clerk’s office
– HOA has paid no property tax
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Prior BBP Boards of Directors Attempted to
Clarify White Masonry Fence Status
• White Masonry Fence legal status has been an issue
since HOA transition from community developer
circa 2002/2003
• Prior fencing legal status research on behalf of the
BOD appeared to follow earlier management
company (UPA) guidance
• Prior legal opinions appeared to be based on
potential intentions and selected statements, not
documents filed within the Clerk’s Office 23
Study Group Findings
• Black metal and white masonry fence legal status has been an issue since the
HOA transition from Declarant to homeowners.
• “Common Elements” -- an essential feature of a condominium development,
are all portions of a condominium other than the units that are used by all the
unit owners. BBP is not a condominium within the meaning of the Virginia
Condominium Act because there are no undivided interests in common
elements vested in the unit owners.
• BBP has NO common areas as defined by “Declaration of Covenants,
Restrictions, Reservations, and Easements of Bay Breeze Point”.
• NO documents could be found within the Clerk’s office that passed any real or
personal property to the HOA by Developer Letchworth.
• City of Norfolk documents for Phase 1 have white masonry fence located on
individual lots vice common areas. Phase 2 documents did not initially depict
white masonry fence north of Pleasant Avenue (except the first four sections)
given it was added circa 2002 by the developer within the boundaries of
individual lots and not separate common areas.
• BBP pays NO property taxes.
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Study Group Findings
• BBP HOA obtained insurance coverage for fencing in 2003 based on guidance from
BBP Property Manager.
• BBP HOA’s Board of Directors approved a major white masonry fence repainting circa
2004. Legal status of the fence and responsibility for its maintenance had not been
formally established.
• BBP HOA’s Board of Directors approved a white masonry fence resolution (# 92208-2)
on September 22, 2008 that restricted use of HOA funds and required HOA approval
along with special assessment.
• BBP HOA annually funds landscaping/lawn care for the areas immediately around the
Pleasant Avenue entrance – these actions are performed on both City of Norfolk and
private property not HOA property.
• BBP HOA Board of Directors continues to base the majority of the HOA reserves
requirement on the white masonry fence maintenance/repairs.
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Study Group Specific Findings:
Black Metal Fence
• Fence was installed by community
developer as a border between
bric-brac bank and Bay Point Drive
lots.
• In several cases, fence has been
altered by adding gates, etc.
• Developer-installed fence
runs behind eleven (11) lots
along Bay Point Drive (twelfth • Fence location restricts its use to
lot fence was owner installed). the eleven (11) Bay Point Drive lot
• Fence is located on Federal owners.
Government property.
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Study Group Specific Findings:
White Masonry Fence
• Fence runs behind 14 homes and on one vacant lot along 30th Bay and at BBP entrance on
Pleasant Avenue.
• Fence was installed by community developers.
– Fence at the Pleasant Avenue entrance (4 sections on North and 4 sections on South
side of Pleasant Avenue) and fence to the South was constructed circa 1994 by Moore.
– Fence running North from the 4 sections build by Moore, was constructed circa 2002 by
Letchworth.
• All fencing is located on private properties or City of Norfolk property (first 4 sections of
fence south of Pleasant Avenue are located on City of Norfolk pumping station property).
• Two wall and landscape maintenance easements were found – both involve the first 4
sections of fence south of Pleasant Ave on City of Norfolk property. One was a variable four
(4) foot wall and landscape maintenance easement and the other was a variable width
perpetual easement for the installation and maintenance of a brick wall and landscaping.
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Study Group Conclusions
• HOA has NO “Common Area(s)” as defined by the Declaration of Covenants,
Restrictions, Reservations and Easements of BBP.
• White masonry fence was constructed by property developers Moore &
Letchworth on property that was incorporated into individual lots (private
properties) or property dedicated to the City of Norfolk for a pumping station.
• Access to the white masonry fence located on City of Norfolk property was granted
to the HOA via a variable perpetual landscape easement (adjacent to Pleasant Ave)
and a four foot landscape maintenance easement (adjacent to 30th Bay).
• HOA has maintained the landscaping at the Pleasant Avenue entrance on City of
Norfolk and private properties.
• Black metal fence was built by the developer on Federal Government Property and
has restricted access.
• HOA should review its current insurance policies and consider future policy
adjustments for fencing property coverages.
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Suggested HOA Roll-out Plan
• Forward letter to each lot owner:
– Explaining the HOA fencing issues
– Providing them an executive level summary of study & results
– Post executive level summary on community website
– Informing them of special HOA fencing meeting on September 9, 2010 at
6:30PM at the Ocean View Library (Mary D. Pretlow Anchor Branch
Library) in Meeting Rooms 1&2
• Objective: Notify each Lot Owner of the study’s findings and
conclusions via mail and/or in person at the September meeting
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White Masonry Fencing around
Pleasant Ave Entrance (circa 2009)
City of Norfolk Property
Private Property
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Pleasant Ave Entrance
to Bay Breeze Point circa 1999
Note: 1) Pump Station in place
2) White masonry fence
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