The opinion
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STATE OF MAINE .* SUPERIOR COURT
SOMERSET, SS. CIVIL ACTION
DOCKET NO. : CV-03-076
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PAUL GARAND and
SUSAN GARAND,
Plaintiffs
DECISION
SNOWSHOE VILLAGE UNIT
OWNERS ASSOCIATION,
Defendants
Before this court is a thee-count complaint brought by the plaintiffs against the
defendant. Roy Pierce, Esq. appeared on behalf of the plaintiffs and John Wall. Esq.
appeared on behalf of the defendants.
Introduction
Plaintiffs have brought a three-count complaint requesting a declaratory judgment
in counts one and two and alleging a breach of good faith in count three. The controversy
in this case surrounds the rights and obligations of the association members under the
bylaws and regulations of Snowshoe Village Condominiums. The plaintiffs are asking
this court to find that they had received approval for the work done on unit 24. Further,
they are asking that this court find that the defendants waived their rights to insist on
strict compliance with the rules and regulations. Finally, the plaintiffs are asking for
monetary damages and attorneys fees pursuant to the alleged defendant's breach of its
duty of good faith imposed by 33 M.R.S.A. fj1601-1 13.
Facts
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The Garands are the owners of unit 24 of the Snowshoe Village Coildominiums in
Embden, Maine. Snowshoe Village Association manages the condominiums, which
consists of 36 units located on the shores of Embden Lalce.
On November 14, 2002, Paul Garand appeared before the town of Embden's
planning board to obtain a permit regarding an addition to unit 24. The application that
was presented to the board (Exhibit 28) sets out the dimension of the addition, but it does
not mention the type or color of the siding to be used.
On November 2 3 , 2002, Susan Garand appeared before the Snowshoe Village
Association board of directors to request approval of an addition to unit 24. Susan
Garand was a member of the board of directors at the time. Ms. Garand stated that she
told the board the lilcely color and siding material and offered to show them a sample of
said material. Board members, who were at that meeting, indicate that Ms. Garand did
not discuss with them the material or the color.
The minutes of the meeting on November 24, 2002, indicate that the board voted
to approve the requested construction with the requireinent that the building permit
obtained from the town be submitted to the board.
Nancy Kozlowslci was at the November 24, 2002 meeting, but doesn't remember
anything discussed at that meeting. Katherine Merrow stated that there was no mention
of the siding material or color at the meeting. Michael Sackett also indicated that there
was no mention of the siding or color at the meeting.
The bylaws of the Snowshoe Village Association (Exhibit 3) make no mention of
additions or requirements for additions to any units. The Declaration (Exhibit 1) states in
section 6.2(b) that no addition may be made without the prior written consent of the
board of directors. It further states that no owner shall change the external appearance
without prior written consent of the board.
Although the board never approved the color, it did approve the addition without
addressing the issue regarding the siding, including the color of the main portion of the
unit. Although the board approved the project, as reflected in the minutes of the
November 24, 2002 meeting, it never gave written permission.
Mr. Garand began the work on his addition in the spring of 2003. On April 27,
2003, Ms. Merrow, as president of the board of directors, gave notice to the plaintiffs that
the plaintiffs had violated section 6.6 of the co~ldominiumdeclaration. A board meeting
was held on April 27, 2003, (Exhibit 47) but thzre was no mention of Ms. Merrow
delivering this so called stop order to Mr. Garand. Michael Sackett, a member of the
board, testified that following the meeting of April 27"', the board visited the building site
and then held another meeting where they decided that the color was too light. Mr.
Sacltett referred to it as "a color that looked yellow". This action by the board following
their meeting of April 27, 2003 was never documented by any board minutes. Although
the board gave Mr. Garand a stop order, there is no provision in the bylaws or the
declaration for any stop orders; however, it did put the plaintiffs on notice of a
controversy surrounding the vinyl siding they were installing. At the time of the notice
on April 27, 2003, Mr. Garand indicated that he had installed the vinyl siding on one side
of the addition. He estimated that he had put up one hundred to two hundred square feet
of a total project consisting of 1,000 square feet. Mr. Garand also indicated that he had
purchased the vinyl siding and could not return it at the time of this notice. Mr. Garand
completed the installation of all this siding following the deliverailce of this notice.
On September 1, 2003, Ms. Merrow, as president of the board, sent a letter to the
plaintiffs (Exhibit 38) demanding that the vinyl siding be removed and replaced by wood
siding-stained or painted a brown, to be preapproved by the board. It further alleged
violation of sections 2.4(d), 6.2(b) and 6.6(2).
The letter also indicated that if t h s wasn't done within 10 days, a penalty of 10%
of the monthly assessment per day would be assessed against the plaintiffs.
On November 7, 2003, the board in another letter from Ms. Merrow (Exhibit 40)
indicated that in addition to the penalty assessment referred to above, they were going to
shut off the water and cable to unit 24.
This action by the board and by the plaintiffs has led to this controversy before
the court.
Discussion
The case before this court surrounds the issue as to whether the plaintiffs violated
the declaration and/or bylaws by installing vinyl siding, the color Monterey Sand, without
the written pennission of the board of directors.
Plaintiffs argue that it got permission for the addition even though the board did
not require specific infoimation as to the type and color of the siding before granting the
permit. Plaintiffs allege that this permission granted by the board was in compliance with
the bylaws and/or the declaration. They are arguing that since the board did not demand
more speciiics regarding the project, they cannot complain after the plaintiff purchased
the siding that was within the Association's "past practice" as to the type of siding and
the color of siding.
Past practice of the Snowshoe Village board indicates that many things were done
informally and many assumptions were made by all parties involved in this case. The
presence of unit members on the board and past actions talten by the board shows a clear
deviation from strict compliance with all of the rules and regulations of the association.
With regard to the type of siding and color that the Association permitted to be
put on units, there was a great deal of confusion and ambiguity. There appeared to be
confusion regarding the allowance of vinyl siding; however, the evidence indicates that
the so-called Moody case resolved the issue of vinyl siding. On July 3 1, 2000, the
minutes of the board meeting state. "vinyl siding is okay" (Exhlbit 4). In view of this
clear acceptance of vinyl siding as an acceptable siding, this court questions why the
notice sent to the plaintiffs on September 1: 2003, (Exhibit 38) demands that the Garands
replace the vinyl siding with wood siding. Tlis leads the court to believe that initially the
board incorrectly asserted that vinyl siding was not acceptable under the bylaws or
minutes of the association. At the time of the trial, the defendants have conceded that
vinyl siding was not a problem and was in compliance with the Association's rules and
regulations. Nevertheless, as of the time that this controversy arose, it raises some
question as to the confusion and ambiguity as to what was and was not permitted by the
Association.
The court now turns to the issue of color. Here again there is a great deal of
confusion. On July 3 1 , 2000, (Exhibit 4) the board discussed the color to be placed on
condominium units. The minutes state the following:
"Vinyl siding is okay if it comes in colors that are brown, shake shingles come in
brown."
A board meeting was held several months later on September 10,2000, regarding
the Moody controversy. Mr. Moody had placed vinyl siding on his unit without
permission. This unit is shown in Exhibit 73. The minutes of that meeting state:
"Rob Moody's siding approved as threshold for siding".
"Brown and shades thereof, will be the external color. Katie and Ruth to make up
color board (trim also)" (Exhibit 7).
It should be noted that the color board was never done.
At the annual meeting 011 July 22, 2001, the minutes indicated that the board
adopted standard colors for exterior of units, but never indicated what the standard colors
were. It also established a review committee for unit owners' construction projects. Here
again the testimony surrounding this review committee and the standards colors indicate
that standard colors were never adopted and a review committee was never organized.
The minutes of the board indicate that the accepted color was brown or a shade
thereof. Despite this statement in the minutes, many board members indicated that
although the accepted color was a shade of brown, it had to be lighter than Moody's.
This was the testimony of Nancy Kozlowslti. Mr. Agren, a former board member, said
that the plaintiffs shade of brown was lighter than ever agreed upon. Mr. Sackett said
that the Moody vinyl was the lightest benchmark to be allowed. He indicated this was
conveyed to all of the unit owners and referred to a letter dated August 10, 2000.
(Exhibit 6) T h s letter stated that the outside of the units had to be brown. There is no
mention of the shade of brown or that it had to be lighter than the Moody's shade.
This court finds that the color to be used by unit owners had to be "brown or
shades thereof '. The board never gave any other notice to the unit owners. The board
authorized that a color board be produced, but it never was. The annual meeting in July
of 2001 makes reference to the fact that the board adopted standard colors for exterior
units, but there is no indication as to what these colors are.
The defendants assert that the Moody unit was supposed to be the standard and
made reference in the minutes to the term "tlxeshold". However. the minutes regarding
the Moody controversy clearly indicate that the teim threshold refers to the vinyl siding,
not the color. The language in the minutes pertaining to the color indicates "brown and
shades of brown".
There was no reference anywhere as to what shades of brown were acceptable, i.e.
lighter or darker. The defendants' witnesses assertion that the board had accepted brown,
but no lighter than the Moody's, is not documented. The defendant's witnesses can see
that the color chosen by the plaintiffs (Moiiterey Sand) is a shade of brown, but argue that
it is too light a shade of brown.
Even if the Moody color was the standard, this court finds an insignificant
difference between the shades of brown when comparing the color put on unit 24 (Exhibit
45), and the shade of brown in the piece of vinyl (Exhibit 44) and a photo of the Moody
building (Exhibit 73).
Since this court finds that the standard for colors on the exterior of units of
Snowshoe Village is brown or shades thereof, this court finds that the color used by the
plaintiffs is in compliance with the colors adopted by the board of directors. Because of
the past history of inconsistency of its enforcement of its bylaws and rules regarding the
exteriors of buildings, and because of the confusion surrounding the standard of color to
be used, this court finds that the vinyl siding of Monterey Sand is in compliance. The
court finds that the plaintiffs failed to follow all of the necessary steps to get prior written
approval to change the color; however, the court also finds that the board did approve the
project without knowing all of the specifics of tlie project and therefore is now estopped
from claiming a violation of the procedures to be used when the color used by the
plaintiffs is not in violation of the rules
Under the facts and circumstances of this case, this court finds that the violation
by the plaintiff to fully comply with all of the processes of prior approval is not material
or substantial. Wherefore, the court finds that the plaintiff is not in violation of the
bylaws and/or the declaration, and therefore is not subject to the 10% penalty or the
termination of its water and cable.
Further, the court finds that the evidence does not support the plaintiffs claim of
breach of good faith and denies its claiin for monetary damages and attorneys fees as
alleged in Count three.
It is hereby ordered that judgment be entered in favor of the plaintiffs in counts
one and two. The judgment shall read that the plaintiffs are not in violation of the
Association's bylaws andlor declaration; therefore the defendants are not allowed to
assess any penalties against them nor are the defendants allowed to turn off the plaintiffs'
water and cable.
IT is furtheled ordered that judgment shall entered in favor of the defendants on
plaintiffs count three.
At the direction of the court, tlis order shall be incorporated into the docket by
reference pursuant to Maine Rules of Civil Procedure 79(
DATED: S-ti-o/
PAUL H GARAND - PLAINTIFF SUPERIOR COURT
821 OCEAN AVENUE SOMERSET, ss .
PnRTLAND ME 04103 Docket No SKOSC-CV-2003-00076
.orney for: PAUL H GARAND
ROY PIERCE - RETAINED 12/05/2003
PRETI FLAHERTY BELIVEAU PACHIOS & HALEY DOCKET RECORD
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
SUSAN E GARAND - PLAINTIFF
Attorney for: SUSAN E GRPAND
ROY PIERCE - RETAINED 12/05/2003
PRETI FLAHERTY BELIVEAU PACHIOS & HALEY
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
vS
SNOWSHOE VILLAGE UNIT OWNERS ASSOCIATION - DEFENDANT
Attorney for: SNOWSHOE VILLAGE UNIT OWNERS ASSOCIATION
JOHN WALL - RETAINED 12/30/2003
MONAGHAN LEAHY LLP
95 EXCHANGE ST
PO BOX 7046
'TLAND ME 04112-7046
Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT
Filing Date: 12/05/2003
D o c k e t Events:
12/05/2003 FILING DOCUMENT - COMPLAINT FILED ON 12/05/2003
WITH EXHIBITS A, B, C, AND D. TOGETHER WITH COMPLAINT SUMMARY SHEET AND FILING FEE
12/05/2003 Party ( s ) : PAUL H GARAND
ATTORNEY - RETAINED ENTERED ON 12/05/2003
Plaintiff's Attorney: ROY PIERCE
Party(s): SUSAN E GARANE
ATTORNEY - RETAINED ENTERED ON 12/05/2003
I
Plaintiff's Attorney: ROY PIERCE
12/05/2003 Party(s) : PAUL H 'JARAND, SUSAN E GARAND
OTHER FILING - OTHER DOCUMENT FILED ON 12/05/2003
: "ATTORNEY CERTIFICATION"
12/05/2003 Party(s) : PAUL H GARAND,SUSAN E GARANE
OTHER FILING - AFFIDAVIT FILED ON 12/05/2003
OF PAUL H. GARAND WITH EXHIBITS A,B,C,D
1. C5/2003 Party(s) : PAUL H GARAND,SUSAN E GARAND
OTHER FILING - AFFIDAVIT FILED ON 12/05/2003
Page 1 of 7 Printed on: 05/26/2005