CAI-MN Minnesota Community Living - May/Jun 2015

In this Issue: Solar Array Alternatives................8 LEAP Fills a Void Commonly Occupied

by Piles of Waste.....10 May/June 2015

Volume 33 • Issue 3

Sustainability — How It Can Relate to the Actions and Functions of Community Associations

Online Magazine Now Available! www.cai-mn.com/ magazine

Please Consider the Environment Before Printing this Message ..................................14 Solar Installation Is a Multi-layered Process ............................ 18 Insight to Healthy Trees.........................20 Fertigation...............22 And Much More!

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Minnesota Communit y Living

From the President

Board of Directors

What is your Attitude?

by

Gene Sullivan | New Concepts Management Group, Inc.

President Gene Sullivan Phone 952.922.2500 gene@ncmgi.com

M

y father, was a military pilot with the United States Marine Corps. He told me of a story of his early training days where the Corps’ fixed wing training unit in Pensacola, Florida became increasingly concerned over the number of young pilots who ended up ditching their planes in the water over and over again while beginning take off.

What was initially being written off as a bad batch of recruits, who couldn’t be taught how to fly, became an early lesson in understanding vertigo. “Vertigo” is that dangerous state of mind all pilots will face at some point in their flight experience where they become confused with their direction and orientation. This can easily happen when you are forced to react by putting your aircraft in quick and tight maneuvers. For it is in that brief moment the pilot must make a decision, to accept what “feels right” or ignore that for what you expect, that which “is right.”

Do you accept or expect?

People that accept the way things are, see themselves as victims; people who cannot make a difference, but only as one who hopes someone else can.

People not willing to accept the way things are, expect a different outcome, because they are willing to make a difference.

I have seen both during my time as President of CAI. I have had the calls from people who ask “How come you haven’t done this?” or “Why don’t you do that…?”

People who only can find fault because they hope someone else will care.

Those are people like Cliff Kurth, Halo Stafford, Carla Gruenhagen, Linda Wilkins, Peter Tjornhom, Brandon Stendal, and Tim Magnuson who are on CAI’s Charitable outreach committee who once again have encouraged us to look beyond ourselves and have said we can make the difference in the lives of those with drug and alcohol addiction by investing in Minnesota Adult & Teen Challenge.

Not only have they helped us to focus on life besides ourselves, they have helped us to direct thousands of dollars in less than two years to this great organization.

We need to thank all of them for their heart and example.

Vice-President Joel Starks, CMCA Phone 952.698.2053 joel@sharpermanagement.com Treasurer Halo Stafford, CMCA, AMS, PCAM Phone 952.944.2237 edenplacemgr@pinnaclefamily.com Secretary Nancy Polomis, Esq. Phone 952.941.4005 npolomis@hjlawfirm.com Directors

We need to recognize the tireless work of those who have been willing to serve on CAI’s Legislative Action Committee. Who have not been willing to accept things the way they are, but instead, have worked to build the organization we have today with our own lobbyist and have made a huge contribution to maintaining the best of what people appreciate about HOA living.

It has been through the thoughtful and deliberate work of those on the education, tradeshow, and social committee, who have worked to provide us with opportunities to become better and more professional at our craft, but to also remind us that we simply just aren’t competitors, we are people who want to make a difference in the lives of others!

My encouragement to those reading this is – what is your attitude?

Are you one who will accept things as they are, or are you one who will help us make even more of a difference?

JoAnn Borden, CMCA, AMS, PCA Phone 763.746.1196 jborden@developcommunity.com Matthew Drewes Phone 952.835.7000 mdrewes@tn-law.com Joseph Fadell Phone 952.392.9208 fadell.joseph@gmail.com Russ Lis, CMCA, AMS Phone 612.805.6111 rlis@reconstructionsolutionsgroup.com Crystal Pingel, CMCA, AMS, PCAM Phone 952.277.2703 Crystal.Pingel@fsresidential.com Jim Rezek Phone 763-424-9984 jimrezek@comcast.net Michelle Stephans, RS Phone 763.754.5500 michelle@reserveadvisors.com

I have also been humbled and in deep admiration over those who have said I will not accept the way things are, I will make a difference!

Committee Chairs Communications Chair

Carin Rosengren Phone 952.432.3722 CRosengren@kellerpm.com

Charitable Outreach Committee Chair Cliff Kurth Phone 763.248.1047 cliff@aemn.co

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Education Committee Chair Nigel Mendez Phone 651.287.8640 nmendez@carlsonassoc.com

Golf Tournament Chair Kris Birch Phone 651.481.9180 krisbirch@birchlawn.net

Minnesota Communit y Living

Legislative Action Chair John Dorgan Phone 612.721.4116 jrd@jdorganlaw.com

Membership Chair

Paul Lawson FirstService Residential Phone 952.277.2792 paul.lawson@fsresidential.com

Social Committee

Jenna Wright Phone 303.547.7848 jwright@bensonpc.com

Trade Show Committee Chair Michele Ramler Phone 763.231.9809 mramler@cedarmanagement.com

Vision Awards Chair Shaun Zavadsky, CMCA Phone 952.277.2786 shaun.zavadsky@fsresidential.com

Letters from Readers

Mitigator Referrals vs. Licenses

Correction for Jan/Feb MCL

Thanks for your article in Minnesota Community Living. I just noticed that you suggest hiring a licensed radon mitigation contractor. Minnesota does not currently license radon testers and mitigators. A bill was introduced in the legislature this year to do so, but has not found much support in the legislature or the radon testing / mitigation community. I do not support such a bill for many reasons. (Discussion too long for this email.)

The January/February 2015 issue of Minnesota Community Living on pages 17 and 19 contained an article I wrote following the Halloween snow storm of 1991, but no credit was given. Please make this correction and advise. This article was previously unpublished and was used as a marketing brochure.

The credential to look for is AARST - NRPP listed, which is also creates a listing on the Minnesota Dept. of Health radon website.

There are a few mitigators with bad reputations who have this credential and one or more excellent mitigators who no longer carry this credential. It is unlikely that licensing these individuals would improve the present situation. As always, an HOA or homeowner should seek contractor referrals and investigate the performance, business practices, and qualifications of any vendor prior to hiring the firm.

Finally, I’m not sure that avoiding a roof penetration on a mitigation system is preferable to a system with an exterior pipe and/or blower installation. The aesthetics of an exterior system are generally not good. A simple pipe penetration of the roof generally looks fine and is relatively trouble- free if installed properly.

I can refer you to several trusted mitigation contractors if you would like more information on this matter.

Overall, I think your article raised and answered some interesting questions. Thanks again.

Best wishes.

Roger Hankey, ASHI Certified Inspector

1280 Landmark Towers 345 St. Peter Street St. Paul, Minnesota 55102 P 651.222.2155 F 651.222.2156 www.levinandedin.com

We have substantial experience helping condominium and townhome associations in the successful resolution of: • Construction Defects • Insurance Claims • Water Damage

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Minnesota Communit y Living

On a separate matter, anyone installing solar panels on a building roof would be wise to contact the shingle manufacturer to discuss solar systems that may void an existing shingle warranty. Some manufacturers require a minimum distance between the solar panel and the roof deck (for air circulation).

Respectfully yours, Gil Cross, GWCross, LLC

Calendar 2015 Upcoming Events CAI-MN Social Event: Twins Baseball Game Outing Wednesday, June 10, 2015

CAI-MN Social Event: Boat Cruise July 16, 2015

Index 8

Solar Array Alternatives

By Walt Burris, BEI Exterior Maintenance Corp.

10 LEAP Fills a Void Commonly Occupied

by Piles of Waste

By LEAP

14 Please Consider the Environment

Before Printing this Message By Matt Drewes, Thomsen & Nybeck, P.A., Attorneys

CAI-MN 2015 Golf Tournament Monday, August 10, 2015 Midland Hills Country Club

18 Solar Installation Is a Multi-layered

CAI-MN 2015 Vision Awards

By David Streier, Newport Partners, LLC

Process

Thursday, September 17, 2015 International Market Square

20 Insight to Healthy Trees

CAI-MN Social Event: Wine Tasting

22 Fertigation

Thursday, October 1, 2015

CAI National Course: M-206 October 1 – 2, 2015

By Mitch Bauer, ISA Certified Arborist, BIRCH, Inc.

By Bob Mac Donald, CMCA, AMS, PCAM, Cedar Management

24 12 Tips & Tricks for Self-Managed

CAI-MN Manager Seminar (1/2 day)

Associations

By Jewel Pickert, Conflitel Resolutions, LLC

CAI-MN Manager Seminar (1/2 day)

26 Man’s Best Friend or an Association’s

Tuesday, October 13, 2015

Tuesday, November 10, 2015

Worst Enemy?

By Nancy T. Polomis, Esq., Hellmuth & Johnson, PLLC

CAI-MN Social Event: Ugly Sweater and White Elephant Holiday Party

30 Elements of Success

CAI-MN Manager Seminar (1/2 day)

32 The Value of an HOA

Thursday, December 3, 2015 Tuesday, January 12, 2016

By Ted Salgado, Reserve Advisors, Inc.

By Kate-Madonna Hindes, Staff Writer

38 Gathering of Angels Recap

Have Comments?

Email your feedback on articles to suey@cai-mn.com for a chance to be featured in Minnesota Community Living!

By Monte Abeler, CAI-MN Account Executive

Register online at www.cai-mn.com

For more information regarding an event, call the office at 651.203.7250 or visit the CAI-MN website. Online registration is available at www.cai-mn.com.

Series 3 President’s Message

By Gene Sullivan, New Concepts Management Group, Inc.

4 Letters from Readers 6 Carin’s Corner

By Carin Rosengren, CMCA, Keller Property Management

36 Ask the Attorney

By Nigel H. Mendez, Esq., Carlson & Associates, Ltd.

2015 Annual Partners Platinum

Asset Exteriors

Community Development, Inc.

Sela Roofing & Remodeling

Xtreme Exteriors Gold

Benson, Kerrane, Storz & Nelson

Community Advantage, a Wintrust Company

FirstService Residential

Gassen Management

Hellmuth & Johnson Silver

All Ways Drains

American Family Insurance Jeff Mayhew

Carlson & Associates

Gaughan Companies

Hammargren & Meyer PA

Mutual of Omaha/CA Banc

New Concepts Management

Sharper Management Bronze

American Building Contractors

Clean Response

Gates General Contractors, Inc.

Levin & Edin

Michael P. Mullen, PLLC

TruSeal America LLC

Published by Community Associations Institute — Minnesota Chapter, copyright 2015. All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Minnesota Community Living or CAI–Minnesota Chapter. The information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting, or other professional services by the CAI–Minnesota Chapter, or by Minnesota Community Living, or its authors. Articles, letters to the editor, and advertising may be sent to Monte Abeler at montea@cai-mn.com, or at CAI–MN Chapter, 1000 Westgate Dr., Suite 252, St. Paul, MN 55114.

[ ADS ] All Ways Drains................................................ 19 American Family Insurance – Jeff Mayhew........ 12 APMC – Association Property Management Company..................................................... 34 Asset Exteriors................................................. 29 BEI Exterior Maintenance ................................ 9 Benson, Kerrane, Storz & Nelson, P.C. .......... 16 BIRCH, Inc. ...................................................... 21 Carlson & Associates, Ltd ................................ 6 Columbus Exteriors, Inc.................................... 2 Community Advantage .................................. 34 Community Development, Inc....................... 23 Construct-All Corporation ............................... 6 Felhaber Larson .............................................. 13

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Minnesota Communit y Living

Index of Advertisers

Final Coat Painting.......................................... 21 FirstService Residential................................... 25 Gassen Companies ......................................... 31 Gates General Contractors, Inc. ...................... 7 Gaughan Companies ..................................... 16 GJ Awning & Canvas ...................................... 16 Hammargren & Meyer, P.A. ............................ 21 Hellmuth & Johnson, PLLC............................. 25 Jet-Black .......................................................... 17 LS West, LLC ................................................... 37 Levin & Edin....................................................... 4 Minnesota Roadways Co. ............................... 34 New Concepts Management......................... 38 Omega Management, Inc............................... 28

Plehal Blacktopping........................................ 28 Reserve Advisors.............................................. 19 Reserve Consultants, Inc. ............................... 21 Reserve Data Analysis, Inc. ............................ 34 Restoration Technologies, Inc........................ 12 Russo Consulting, Inc. .................................... 15 Sara Lassila, CPA Inc. ...................................... 12 Sela Roofing .................................................... 35 Sharper Management ...................................... 4 Strobel & Hanson, P.A..................................... 20 Toohey Law Firm, P.A. ..................................... 34 TruSeal America LLC....................................... 40 Xtreme Exteriors.............................................. 39

Carin’s Corner

Sustainability: What Does that Mean, Anyway?

W

elcome to the latest edition of Minnesota Community Living!

In this issue, our focus is on sustainability and how it can relate to the actions and functions of community associations. Ideally sustainability can help associations save money in the long run while at the same time, much like a doctor (or an editor), first “doing no harm” in the actions and functions they perform.

As it turns out, “sustain” has four definitions as a verb (by the way, if you like words as much as I do, check out www.visualthesaurus. com, it is so cool), but the definition we’re focusing on is “lengthen or extend in duration or space.” There were lots of ideas from our committee on how associations can use this tactic to their advantage, and I think today’s content is a pretty good array of information.

Speaking of arrays, check out the article by Walt Burris of BEI Exterior Maintenance: He offers a follow-up to one of the stories in the Jan-Feb “Solar Edition,” with insight on a new method of solar installation called a flush-mounted array. This becomes part of the roof instead of something mounted on the roof.

There’s also a wonderful article contributed by the LEAP asphalt company from the Twin Cities: What they are doing with a patented process makes better, stronger and long-lasting hot asphalt mix out of 100 percent recycled asphalt. This is not only giving associations a better product as they build or redo roads and driveways, it’s cutting down on landfill deposits and making hot asphalt available year-round.

By Carin Rosengren | CMCA, Keller Property Management

Attorney Matt Drewes supplies us with answers to the “can we” and “should we” questions about sending these sometimes-legal, sometimes-informal mailings electronically, with his article, “Please Consider the Environment Before Printing this Message.”

Finally, we offer an article that tells a rich story about a Minneapolis condominium association’s journey as it explores, learns, communicates and works hard together, to land a solar array on its roof. This element is now saving the association money on utilities as it generates clean, sun-provided power.

We hope the articles in this month’s issue leave readers with two more definitions of sustain: Provide with nourishment, and supply with necessities and support.

What Would You Like to See in Future Editions?

If you have ideas for future articles or if there is a topic you’d like this committee to explore, expand upon or explain, please let us know! We are continuously looking for ideas for articles that will inspire or benefit our readers. Every idea is welcome. Please know: if it interests you, it interests those who contribute to this magazine. Ideas for articles may be submitted to Monte Abeler via email: MonteA@ewald.com, or to Carin Rosengren at crosengren@kellerpm.com.

Thank you!

When we consider how many mailings, notices, newsletters and more are delivered every year to owners in associations, thinking about sustainability can help us find room for improvement.

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Minnesota Communit y Living

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Minnesota Communit y Living

Solar Array Alternatives

A Response to Questions about Construction

By Walt Burris | BEI Exterior Maintenance Corp.

I

n the January/February 2015 issue of Minnesota Community Living, an article on page 10 by Matt Drewes addresses many of the issues surrounding the installation and maintenance of pedestal-mounted solar arrays. Specifically, he raised a number of considerations regarding the impact of these arrays on warranty and insurance issues if the solar array is mounted over the top of an existing shingle roof.

Flush-mounted panels minimize the potential additional wind load created by the panels themselves, creating no more wind load than a skylight would. The flush-mounted panel has a very low profile of about two inches above the surrounding asphalt shingles. On roofs with wood shakes or metal shingles, the panel might even be flush to the surrounding roof surface material, further minimizing the impact of wind on the array.

This response is not intended to discuss the pros and cons of the concept of solar. Nor is it intended to critique Mr. Drewes’ observations, which were spot on. The hope is that this response will elaborate on the concerns he addressed and review a relatively new alternative to the pedestal-mounted solar array. This alternative is an array that mounts flush to the roof deck, allowing it to serve as roofing material. There are no shingles involved with the installation of a flushmounted solar array except those around the perimeter of the array.

Lowering the height of a pedestal-mounted solar array wouldn’t necessarily provide a perfect solution to the wind-load concern. If the space under the pedestal-mounted array is too small, collection of debris under the array could inhibit roof drainage much like an ice dam, forcing the water up slope and under the shingles, resulting in leakage. There are no such drainage issues with the flush-mounted array. Since the flush-mounted panels are mounted directly on the roof deck surface and serve as the weatherproof surface (much like a skylight), there are no penetrations to caulk, no potential leaks and no shingles to damage or age underneath the array.

Under Mr. Drewes’ paragraph titled “A Force of Nature” he accurately expressed concerns about the additional weight added to the roof structure related to the solar array. With the pedestalmounted array, not only is there weight added to the roof, the added weight is concentrated on the pedestals. This combines the entire weight of the solar array on relatively small areas of the roof structure. In contrast, the weight of the flush-mounted solar array is distributed uniformly across the surface of the roof. In addition, with the flush-mounted system, there is no need to be concerned that an installer might use fewer pedestals in order to reduce cost, thus increasing the weight at each of the mount points. Regardless, the ability of the roof structure to handle additional weight must always be determined, as any new system does change the total weight of the materials on the roof.

Mr. Drewes’ next observation is the change of wind loads on the roof surface because of the space between the bottom of the array and the roof surface and the height the array projects above the roof surface. The space between the surface of the roof and the underside of a pedestal-mounted array may vary from two inches to as much as nine inches. The height at the top surface of the array can project as high as 12 inches or more from the roof. The risk of unusual wind loads that a roof was not designed to handle becomes very real with the pedestal-mounted arrays, as Mr. Drewes pointed out.

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Minnesota Communit y Living

Another advantage of the flush-mounted array is that, when the time comes to replace the roof shingles, there is no need to remove the array before removing some of the shingles because there are no shingles under the flush-mounted array. This avoids the significant cost of removing and reinstalling the solar array in order to get at the shingles. There will be further future savings in that the roof replacement will cost less because the portion of the roof covered by the array will have no shingles requiring replacement.

As Mr. Drewes points out, there is always the danger of developing a leak around one of the array pedestals, the repair of which would require disassembly of a portion of the array to address that leak.

Since there are no exposed penetrations under the flush-mounted array, this is never an issue. And, there are no shingle warranty issues with the flush-mounted solar panels.

Hopefully these observations shed additional light on the excellent article Mr. Drewes authored in the January/February publication.

This is still a fledgling industry and we can be assured that as it matures, there will be many significant changes. Will we ever see solar panels on multi-family structures? Your guess is as good as mine.

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Minnesota Communit y Living

LEAP Fills a Void Commonly Occupied by Piles of Waste Environmentally Friendly Process Uses 100% Recycled Asphalt

By LEAP

T

here is room for improvement within the paving community when it comes to being environmentally friendly. Did you know that for each ton of virgin asphalt produced, there is a quarter-ton of waste recycled asphalt pavement (RAP)? Fortunately today, there is an industry leader in the area of sustainability, using a patented design and process to convert 100 percent RAP into high-performance hot mix asphalt. Better yet, an independent third party confirms that it is stronger, tougher and longer-lasting than conventional asphalt.

The LEAP technology breakthrough happened in the spring of 2012; shortly thereafter, the Brooklyn Park-based company opened up the paving industry to year-round production of its Hot Mix Asphalt (HMA). Sustainability is at the forefront because the LEAP production process uses little energy, is environmentally friendly and creates next to zero greenhouse gas emissions.

Instead of waste piles for disposal everywhere, LEAP’s process heats the RAP mix to temperatures necessary to meet performance requirements; and the HMA produced using the LEAP process meets or exceeds minimum performance standards (including trucking security requirement specifications for most states) when using 100 percent RAP. LEAP is currently producing two different types of mix designs, and both are suitable for road or parking lot paving and new construction.

How did LEAP do it?

There are other companies around the globe working to produce high RAP mix designs, but it’s not simple or easy. The LEAP discovery isn’t the heating method alone, but a combination of several unique processes that work in concert providing the ability to utilize 100% RAP mix designs to create a high-performance product. LEAP utilizes an advanced microwave heating system, not the kind you would typically find in your home kitchen.

This system, known by LEAP as the Low Energy Heating System (LEHS), uses the microwave energy to selectively heat the aggregate within the I-RAP. Because microwave technology is used instead of open flame, no pollution is created during production.

How can it be stronger and better?

Here, the story gets technical: Virgin asphalt has two primary chemical components — ­ asphaltenes and maltenes. Asphaltenes are hard materials that provide the mechanical strength while maltenes provide the oily fraction that functions as the sticky component in HMA. Maltenes oxidize with age or excess heat to form asphaltenes, which causes the HMA to become hard and brittle. The aged or 10

Minnesota Communit y Living

heat damaged HMA cracks under heavy loads, causing failures of the road surface. LEAP’s handling and treatment of the RAP prior to injection along with the emulsion formulation used in the injection defines the final results of performance. The microwave heating allows the new emulsion to bond with the old asphalt cement, creating what we call a fused surface material.

LEAP plants have a smaller footprint than conventional asphalt plants. LEAP processes the RAP into I-RAP (injected/stabilized recycled asphalt pavement) which is kept at ambient temperature in storage until heating. On demand the I-RAP is loaded into feed hoppers and conveyed through LEAP’s LEHS (Low Energy Heating System) unit. The production room is a clean room with advanced digital control features.

After heating, the material is conveyed to a storage silo and ready for contractor pick-up, similar to conventional asphalt plants. The simplicity of the plant design and ease of operation allows for 12 month production in any climate.

Following is a primer on the LEAP manufacturing process: Step 1: HARVEST

Step 2: IMPROVE

Step 3: INSTALL

Old or failed pavement is milled off or removed. Material is trucked to LEAP processing center.

Aged pavement material is sized, stabilized and infused. LEAP uses different PG emulsion formulas based on region and performance requirements.

Contractors pick up and install LEAP High Performance HMA using the same equipment and methods as conventional HMA.

The entire production process produces little to no VOCs or particular matter which provides the ability for production to take place indoors unlike conventional HMA plants. This advantage allows for strategic plant placement in zones where conventional asphalt plants are prohibited due to air pollution regulations.

Optimal plant locations can reduce HMA haul rates potentially lowering the cost for installations.

Can a traditional plant be converted to use this technology?

LEAP is excited to announce the development of a conventional plant retrofit design. LEAP will license the technology this year to interested parties. The retrofit will allow conventional plants to monetize and dispose of large piles of RAP while producing high performance, high percentage RAP mix designs, up to 100%. The cost is nominal compared to that of a new plant.

Performance mix specifications have yet to be developed by HMA manufacturers or adopted by Departments of Transportation.

Current specifications are recipe based aggregate mix designs or stone matrix designs. Understanding the barriers in place surrounding high RAP mix designs, LEAP is publishing performance mix specifications as a standard.

Installation methods and equipment requirements are the same between conventional HMA and LEAP. Depending on the mix design, LEAP mix sets rather quickly providing the positive benefit of allowing the contractor to install multiple 2 or 3 inch lifts in a single day and open to traffic immediately after. LEAP HMA compacts well using either static or vibratory drum rollers.

Further benefits and highlights of the LEAP process include: • LEAP HMA will be priced similarly or slightly lower than comparable mix designs.

• Quicker compaction timeline, reduces the need to wait for the mix to cool.

• Close out jobs sooner — LEAP mix provides the ability to install multiple lifts in a single day.

• LEAP mix has increased strength properties and terrific compaction traits which can translate to thicker single pass paving, reducing the need to pave multiple passes on low to medium traffic installations.

• Quicker compaction and mix set time results in faster job completion and reduced traffic control costs.

• LEAP’s low emissions plant provides better strategic plant locations resulting in lower hauling rates.

• LEAP’s plant design allows for 12 month plant operation thereby extending the contractor’s season. This can provide new highprofit revenue streams, i.e., emergency patching services for potholes or water main breaks.

• LEAP is a major CSR or Corporate Social Responsibility player for businesses; contractors may increase their marketplace impact by using LEAP. LEAP’s Greenhouse Gas / Carbon footprint reduction and recycled content can help to earn LEED credits. ºº 2013 Cone Communications Social Impact Study and Global CSR Study: CSR “is no longer an option – it is emphatically and indisputably a must-do”. ºº Millennials (ages 19-35) = 80+million Americans (first generation to grow up alongside cause marketing) make up 25% of US population. 84% of Millennials consider a company’s CSR before deciding what and where to buy.

Continued on page 12

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Minnesota Communit y Living

LEAP Continued from page 11 ºº CSR is a big factor in corporate dollar allocations; LEAP provides a path towards LEED.

Can I utilize the LEAP process?

Contractors need only to call ahead to arrange a pick-up. During winter months LEAP asks for 24-hour notice.

LEAP believes that this technology will revolutionize the asphalt industry. By sheer volume and weight, asphalt is already the country’s most recycled product; however, the LEAP technology could increase those numbers by a staggering amount. It is LEAP’s goal is to spread this technology as far as possible in an effort to save the environment, cut down on greenhouse gas emissions, increase the sustainable cycle of waste material and decrease rock quarrying to a minimal amount. To achieve that goal, LEAP is currently building several more plants in the United States and is also engaging interested parties in discussions regarding both licensing and existing plant retrofits. Additionally, LEAP has designed and patented both a mobile plant ideal for large users and rural areas and inline highway recycling equipment with plans to launch in 2016. The asphalt industry has a lot of room to grow into a more environmentally friendly, sustainable member of society and LEAP hopes to pave the way.

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Minnesota Communit y Living

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Business Partners Community associations rely on their skilled business partners to help them with various needs, from legal and insurance advice to accounting, landscaping and construction services. Vision Awards recognize the contributions of these valuable business partners.

Nominees for these awards will include business partners that provide services to community associations and management companies.

Save the Date!

Please join us for the 2015 Annual Vision Awards on September 17, 2015!

Recognize those outstanding in the community association business! Nominate someone — or an association — for a Vision Award today.

www.cai-mn.com/nominate

The Business Partner Community Impact Award recognizes a business partner/service provider who has positively impacted a community in a significant manner for one individual event.

For example: community maintenance, finance, legal, insurance, restoration, community enhancement, etc.

The Business Partner Excellence in Service Award recognizes a business partner/service provider who displays integrity; reliability; commitment to the industry; loyalty to consumer clients and the ability to interact well with board members, managers, other service providers and other industry professionals. Promotion of ethical conduct and competence are included as part of the qualifications for this award.

member of:

The Community Associations Institute & The Minnesota Multi Housing Association

Providing LegaL advice to

Homeowners associations since 1975 • General corporate matters, enforcement of covenants, restrictions and management issues • Document interpretation and amendments

Fred Krietzman 612.373.8418

Mark Radke Timothy Hassett Jake Hendricks 612.373.8409 651.312.6006 612.373.8575

• Replacement reserve analysis • Collection of assessments and foreclosure of assessment liens • Dispute resolution and litigation, including construction defect litigation • Applicability and options under the Minnesota Common Interest Ownership Act (MCIOA) • Project development and documents • Turnover of developer control

Steve Yoch 612.373.8559

Molly Gherty 612.373.8453

Marnie Fearon 612.373.8405

220 South 6th Street, Suite 2200 Minneapolis, MN 55402-4504 444 Cedar Street, Suite 2100 St. Paul, MN 55101-2136

www.felhaber.com

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Minnesota Communit y Living

Please Consider the Environment Before Printing This Message: Can (and Should) Your HOA Use Electronic Meeting Notices and Ballots?

By Matt Drewes | Thomsen & Nybeck, P.A., Attorneys

I

n keeping with the theme of this issue of Minnesota Community Living, this article reviews a way for community associations to become just a little bit more eco-friendly, using sustainable methods, while saving themselves some time and money in the process. Provided they follow the applicable statutory procedures, most community associations can utilize electronic meeting notices, and even conduct member votes by electronic means.

This isn’t just about saving trees. There is more to gain from taking advantage of available electronic notice and voting capabilities than a reduced environmental impact. Board members and property managers can save time by sending out meeting information by email, and the savings on postage alone can really add up. Also, many members of community associations use the freedom from exterior maintenance obligations to travel in the winter, and those members are likely to receive emailed notices or ballots more promptly than when such items are forwarded to a temporary mailing address.

Note, “electronic means” of communication generally refers to email messages, but the phrase “electronic” can also mean by fax or by posting to an electronic message board that members are then directed to visit to retrieve meeting notices or other materials.

Most associations that use electronic communications simply utilize email as their method of electronic communication.

Can these provisions help you? It will take some cooperation from your members, but for most associations the answer is

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yes. Most community associations are governed by Chapter 515B of Minnesota Statutes, otherwise known as the Minnesota Common Interest Ownership Act, or MCIOA. An even greater percentage of community associations are governed by Chapter 317A, the Minnesota Nonprofit Corporation Act. Where these laws overlap, a community association must comply with the provisions of both, as well as any further restrictions or limitations contained in the association’s governing documents (articles of incorporation, bylaws, and declaration).

Fortunately, both acts authorize electronic notices and voting in some capacity, although the extent to which the statutes grant this authorization does differ between the Nonprofit Act and MCIOA. This article will address the provisions of these laws that most often apply to community associations. Also, due to the number of details to address in establishing electronic notices and voting, this article is intended only as an introduction to the topic, rather than a step-by-step manual.

You should consult your governing documents or your community association’s lawyer to be sure which laws may apply to your particular association, and whether there are any other unique procedural requirements your association may have adopted. For example, there is no question that associations governed by MCIOA can utilize the electronic notice procedures discussed in this article for board of director meetings. However, the use of electronic notices of member meetings is not clearly authorized for MCIOA associations, even though electronic notice of member meetings clearly would be permitted under the Nonprofit Act. The means for participating in a member meeting electronically (including voting) are more expansive under the Nonprofit Act than those under MCIOA, as well. MCIOA

does, however, contain provisions relating to the conduct of electronic voting, subject to limitations contained in the association’s articles of incorporation, bylaws, or declaration. This is covered further below.

Taking notice First, the notice process is a requirement of board meetings, as part of Section 515B.3103(g) of MCIOA, which says that all meetings must be open to members. This section also permits electronic meeting notices, by citing to the Nonprofit Act’s definition of “notice.” That portion of the Nonprofit Act then refers to the statute that grants nonprofit corporations (including applicable community associations) the authority to send notice to members by, among other means, fax or email. The requirement before utilizing one of these means of electronic transmission is that the member must consent to receive notice in the desired method either “in writing” or by means of an “authenticated electronic communication.” “Authenticated” means the communication must be sent in a way that demonstrates the sender is, in fact, the member he or she claims to be.

A change for votes

When members themselves are going to vote on a particular issue, MCIOA also authorizes associations to send ballots to members (and to receive them back) electronically. According to Section 515B.3110(c), a member again must authorize the association to send notice of the vote and the ballot either in writing or by “authenticated electronic communication.”

This authorization can be done in the same document or message authorizing electronic notices of board meetings. There are just two restrictions on this voting process. First, the articles, bylaws, and declaration must not prohibit voting on the particular matter by remote means (“remote means” being either mailed or electronically-transmitted

“Board members and property managers can save time by sending out meeting information by email, and the savings on postage alone can really add up.”

ballots). Second, an association cannot combine an in-person vote with a vote by remote means, but it can send out ballots both by mail and electronically according to each member’s preference. In other words, everyone must either vote in person, or everyone must vote by means of a ballot that is sent to them. The statute just gives associations the flexibility to use alternative transmission methods such as fax or email, subject to the member’s authorization.

Beware of limitations on the use of remote voting procedures contained in governing documents, as well.

Growing pains As with any new way of doing things, there will be some “growing pains” or drawbacks if you want to convert to electronic notices and balloting. First, the association must track and maintain a record of members’ consents (or revocations, if they decide later they want to opt-out of receiving electronic notices).

Also, for those members who approve electronic notices, their email address now 15

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is a corporate record, just as their mailing address would have been, so another member may be entitled to obtain that address (if sought for a “proper purpose,” which could provide the topic for its own article).

If your community association is interested in doing so, these statues allow it to avoid the costly (and less sustainable) method of transmitting all board meeting notices and ballots for member votes by mail. Instead, as long as the member approves the receipt of these notices and ballots by electronic means, those methods will be permitted, potentially saving time, money, and even the environment.

Note: The information in this article is provided solely as general information and not as legal advice. Your receipt, and even your use of this information, does not establish an attorney-client relationship. Readers are urged to speak with a qualified attorney focusing on community association law when making decisions regarding a specific legal issue.

Contact John Russo, Ph.D. Reserve Specialist 952-944-7137

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Solar Installation Is a Multi-layered Process

By David Streier | Newport Partners, LLC

L

ike most projects, my first solar project with a condominium association presented a learning curve. First of all, the condo association I was working with — located in Uptown Minneapolis — worked with a property management company and was governed by a board of directors. At the outset, I knew I would need to fully inform each of the members of the board, as well as the property manager, about the project. This preliminary stage would entail a mixture of meetings, educational presentations, Q&A sessions, research, and follow-up phone calls and emails with additional information and data.

The board and property manager would need to conduct due diligence and examine the terms and conditions of the various contracts I showed them. Our company, Newport Partners, provides tax credit equity and debt financing as well as project development services, so we had to work through a complex set of documents. As an attorney, I handled this process in-house, while the association sought legal counsel from its attorneys.

portion of the facility’s usage. The electricity generated by the system would feed into the service panel for the building’s common areas.

The association would get the benefit of several thousand dollars of annual energy savings on common area utility bills.

The board agreed that it made the most sense to tie into the service panel for the common areas. The association’s electricity utility bills would be reduced, freeing up more cash in the association’s general account. While individual owners would not see their utility bills go down directly, they could be sure that their association was saving money. This, in turn, would give the association a financial cushion to consider when setting members’ dues.

The moment we had all been waiting for came during the condo’s annual summer picnic held in their courtyard green space. The mid-summer evening was thick with humidity hanging in the air.

Darkening clouds were rolling in above, threatening an approaching storm. Not your typical board meeting.

There would be more meetings, presentations, questions, answers, as well as contract review and negotiation with the board, property management company, the association’s attorneys, and subcontractors. On top of that, Minnesota’s community association law required a majority of the members of the association itself to approve the deal because it involved a lease agreement. Needless to say, this would not be a slam-dunk.

The association had set up party tents under which volunteer condo owners served up hot food fresh off the grill, various side dishes, and, of course, cold beverages to wash it all down. These were the same tents under which we’d all have to crowd later on once the storm clouds opened up and released that night’s torrential rain. Before that could happen, Bill, the board president, called for everyone’s attention and began administering the vote.

By the time our team obtained final approval of the project, however, it had become a unanimous decision. Our proprietary solar financing program — we monetize federal tax incentives on behalf of tax-exempt entities and commercial customers — along with “Made in Minnesota” solar rebates we secured for the association made the economics of this deal very attractive to the customer. Even the few board members who initially seemed reluctant had changed their perspective: This was an opportunity to make a sustainable investment in clean, renewable energy resources that would yield environmental benefits while delivering a financial return to the association by generating utility bill savings.

He introduced himself and the solar project team: his fellow board members, me, one of the association’s attorneys, the property manager, and the solar contractors that would be installing the system (All Energy Solar). He gave the crowd a summary of the work the team had accomplished to date and outlined the steps needed to approve the project. The association needed a quorum present in order to hold a vote. The board confirmed this with a headcount.

Finding out we had a quorum was a big relief, considering we had no way to ensure a sufficient number of condo owners would show up. It wasn’t over yet, though.

As expected, the board raised questions about the project’s estimated energy savings and financial return. A question I expect most community associations will raise is “who gets the benefit of the solar-generated electricity?” Would the association or individual owners get credited? This was an important issue that our project team tackled head-on.

For this project, we proposed installing a Made in Minnesota Silicon Energy solar PV system with close to 40 kilowatts (kW) of generating capacity on the roof, enough to power a significant 18

Minnesota Communit y Living

Next, a member of the board read aloud a resolution. If passed by a majority of those present (since we had reached quorum), this would authorize the board to enter into the aforementioned contracts. We were almost there.

At this point, I wasn’t quite sure how they would conduct the vote. I figured maybe it would be done on slips of paper submitted by each person. Perhaps they would vote through a show of hands or some other method that would allow the board president to count how many members were in favor of moving forward with the project.

Instead, he announced they would be voting out loud.

“All in favor, say ‘Aye,’” he shouted to the group.

A ringing chorus of Ayes proclaimed the association’s support for the project. He asked for any naysayers to speak up, but not a soul said a word. Life was good. We were outside in a communal setting, breathing in the fresh summer evening air. The project was approved, and the crowd erupted with applause.

I looked around and saw condo owners who looked proud of their decision to invest in clean, renewable energy for their facility. I walked over and thanked the board members who spent countless hours reviewing project documents, debating the merits of the project, and ultimately finding the benefits of installing solar equipment on the roof far outweighed any risks.

Finally, I spoke with the solar contractors who were happy to have sealed the deal. They would begin work almost immediately. In total, it would take about 2-4 weeks to complete the installation work, electrical wiring, utility commissioning and fire up the system. It will then generate electricity for decades (30-year warranty). Our system for commercial flat roofs like this one is ballasted with concrete block, so although the building’s roof capacity needs to be approved by a structural engineer, typically no roof penetrations are needed.

After congratulating the project team, I breathed a sigh of relief and felt a wave of accomplishment wash over me. As the rain began to pour down, I reflected on the journey that had led us this far. Before obtaining approval from the association, our company handled a variety of tasks on behalf of the association: • • • • • • • • • • •

Design financing program structure Consult with tax attorneys Draft various project financing agreements Vet contracts with utility Arrange tax credit equity and debt financing Market financing program to solar contractors and potential project hosts (i.e. this particular condo association) Prepare utility rebate funding application paperwork Navigate rebate application process and submit application Work with utility to address any issues raised by engineering department Constant communication with utility regarding application status Coordinate installation subcontracts

This kind of work is typical for solar projects. Every project, however, has its unique challenges and quirks. It’s probably clear by now that working with the condo association was a very positive experience.

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Insight to Healthy Trees

By Mitch Bauer | ISA Certified Arborist, BIRCH, Inc.

I

n the spring a lot of homeowners and associations start working to make their landscape look its best. They have a long list of projects: cleaning out flower beds, laying down fresh mulch, fertilizing, etc.

However, many people tend to overlook one thing that adds value to their urban landscape: their trees. Trees are a vital element to any urban landscape. They offer shade, attract beautiful wildlife and enhance curb appeal. But, like everything else, your trees require care. Consequently, it is important to hire a knowledgeable contractor. Here are a few things to consider about the health of your tree:

Selection and planting: • Right tree / Right area — Be sure to select and plant trees with consideration of future height, canopy spread, shape, growth rate and fruit enhances the appearance of your trees, but it can be messy and stain concrete patios and sidewalks.

• Proper Installation — Proper planting of new trees and shrubs will ensure better health and growth in the future. The best time to plant is early spring as just as new growth is starting. The second best time to plant is in the fall because trees and shrubs are going into dormancy.

• Aftercare — Water immediately after you plant. Make sure not to overwater, which is very common. About 30-40 seconds with a steady flow from a garden hose is sufficient.

Fertilization: Annual deep root fertilization will help add needed nutrients to your soil. This will help with the overall health and vigor of your tree.

Mulching: It is important to mulch around the base of the tree. This will prevent damage to the bark around the base of the trunk from lawn mowers and weed whips as well as keep moisture in the soil. In ideal situations you should apply mulch 3” in depth and as far as the drip line or at least 3’-4’ from the base of the trunk.

Pruning: • Structural pruning — This is essential in developing a good structure and proper form with young trees. If done properly when young, the tree will require less corrective pruning later on.

• Pruning mature trees — It is practical to prune mature trees about every 3-5 years depending upon species. When pruning concentrate on removing deadwood, crossing/rubbing branches and sucker growth (watersprouts). Always hire a professional 20

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company, as improper pruning can cause added stress to your tree. Keep in mind that pruning of oaks, elms, ash and crabapples should be done in dormant months (NovemberApril) to avoid the transmission of diseases.

Cabling/bracing: With older trees, it is beneficial to provide support to weaker parts of the tree. Cables should be inspected annually by a professional to ensure that the hardware and cable are in good working order.

Identifying your trees: Most diseases are specific to certain species. It is a good idea to know what type of trees you have on your property, as this will be helpful with being aware of any signs or symptoms of diseases that appear.

Protecting against disease: Most diseases can be treated by spray applications, soil injections or trunk injections. Fungal leaf diseases such as Apple Scab and Anthracnose usually need to be treated every spring as opposed to diseases like Oak Wilt, Dutch Elm Disease and Emerald Ash Borer in which treatments are recommended every 2-3 years based upon the products used. Again, always be sure to hire a professional to be sure treatments are done correctly.

Keep a watchful eye: Doing regular inspections of your trees and shrubs will be helpful in catching any problems sooner than later. Be sure to look at the leaves and branches for discoloration, spotting on the leaves and for insect activity.

Studies show that properties with trees have a positive effect on people. They can reduce stress, help with air quality and improve overall wellbeing. A few simple steps will help you attain and maintain a great looking yard and landscape, one that will add great value to your home and health.

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TREE

Fertigation

Applying Liquid Fertilizer through the Irrigation System

By Bob Mac Donald | CMCA, AMS, PCAM, Cedar Management

A

few years ago I had the opportunity to visit Houston, Texas, for my PCAM case study. At the time, Texas was dealing with severe drought and the use of water was severely restricted. To my surprise, the grounds were green; this was clearly unexpected. During my short stay in Houston, I was introduced to the process of “fertigation.”

Because the theme of this edition of the magazine is sustainability, I would like to introduce many of you to this practice; one that is starting to take hold in northern states.

Before making additional comments on fertigation, I would like to share the fact that the property I visited had recently installed a sophisticated computer-controlled digital irrigation system that it uses in the fertigation process. This system accurately controls the amount of water diverted to each irrigation head and is the vehicle for the application of the fertilizer. In Minnesota, few community associations have high-tech irrigation systems but they do have a need to reduce fertilization costs. Therefore, the intent of this article is to focus on fertigation as it relates to the application of fertilizer and not the savings that might be achieved with a sophisticated irrigation system.

lawn needs to eat every day too! Fertigation ‘spoon-feeds’ your lawn, resulting in a healthy greener lawn, a safe environment, and reduced costs. Frequent and small fertilizer applications are more efficiently utilized by the lawn and less nutrients find their way into ponds, lakes, and groundwater.”1 Fertigation, besides reducing fertilization costs, may also improve the health of a lawn. According to an article on the EMCO sprinkler company website, “Fertigation supposedly reduces the need for pesticides and fungicides. Stressed or unhealthy plants act as magnets to pest populations. Failure to maintain optimal nutrient levels during early summer results in substantially more disease.”

The “feast or famine” feeding cycle of dry fertilizer application can promote conditions in the soil and plant that make plants more susceptible to disease and insect infestation and thereby increase the requirement for pesticides and fungicides. Insects reproduce more rapidly on plants with high nitrogen levels, which can be caused by feast and famine feeding cycle. “Fertigation delivers the nutrients in small, metered amounts so the plant receives the optimal amount of nutrients and the feeding of the plant is very efficient and effective while at the same time reducing the amount of fertilizer bulk.”2

“Fertigation, besides reducing fertilization costs, may also improve the health of a lawn.”

As noted in the title of this article fertigation is the application of liquid fertilizer through an irrigation system. According to the experts, “In semi-drought conditions, a fertigation system can save time and money and it promotes healthier turf besides being environmentally friendly.”

What I saw in Texas supports this contention. In fact, I was amazed by what I both saw and learned about the process. While doing some research about the type and cost of equipment required to install a Fertigation system, I learned that Israel has been using this method to apply fertilizer for a number of years with great success. And, the method and products they use vary from crop to crop. If you have the time and interest you should view the videos on the HAIFA website; they are very educational: www.haifa-group.com/knowledge_center/fertilization_methods/ fertigation/

Dr. Vaughn (the Lawn Doctor) states, “Your sprinkler irrigation system can do more for you than just irrigate.” By applying fertilizer with fertigation, “your lawn can be treated 70 times per season.” This is in contrast to traditional application methods where association lawns may be treated 3 to 7 times per season. Dr. Vaughn goes on to say, “Daily fertilizer applications ensure the lawn has a steady supply of nutrients for uptake. You eat every day; your 22

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Fertigation is the “new frontier” in irrigation and I would be remiss in not mentioning the fact that it has its detractors, as does all new technology. Some vendors consider fertigation to be the only method of fertilization needed while others still consider it secondary to the conventional granular method. Another concern has to do with the effect it has on irrigation heads. Because the process of fertigation injects liquid or water soluble fertilizers into the irrigation system, some contend that the heads are prone to clogging.

Clearly, I am not an expert on fertigation or irrigation — but my trip to Houston piqued my interest in this new technology and I have mentioned it to a few board members at associations I manage where the topic of sustainability has come up. As managers of community associations, we should continually strive to investigate technology that will benefit our clients. Thus my ongoing interest in this process.

1. http://lawnsbydrvaughan.com/services/fertigation/ 2. http://www.emcosprinkler.com/fertigation_why.html

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12 Tips & Tricks for Self-Managed Associations

By Jewel Pickert | Conflitel Resolutions, LLC

1

Avoid politics. If you like politics, run for the city council.

Run away from a homeowner’s association. Too much is at stake with a person’s home to elevate your cause above the interests of the association homeowners.

2

Challenge yourself to accept people, but confront issues.

This can be particularly difficult to do, but the effort is worthwhile. A person is whoever he is. Don’t waste time trying to re-make him to your specifications. Do try to steer everyone on a like-minded path of tackling any issues at hand. Every person’s opinion should be valued and considered on its merit and feasibility.

What some people don’t realize is that some frustration or tension with the process is part of a democratic approach which can lead to better results.

3

Avoid nepotism. Strive to elect people based on their qualifications, not on their lineage. Strive to hire people based on the best fit for the property, not on their connection to a board member.

4

Establish a tie-breaking system. This doesn’t include wringing someone’s neck. It means if you don’t have an odd number of board members in attendance, what will you do? Does someone get more than one vote? Do you simply hash it out to an agreement? You decide.

5

Do what’s in the best interests of the association or property ALWAYS. This should be obvious.

6

Establish a checks-and-balance system. Your bylaws should help with this. Follow them religiously. Every board member is expected to learn about their declarations, bylaws, financial, and legal issues. No one board member should be granted absolute, undue authority on anything. Make sure the majority of the board, unless otherwise noted in the bylaws, makes the decisions. Sometimes you’ll agree; sometimes you won’t. Abide by the majority decision anyway.

If a board member is the bookkeeper, this step is especially important. Most of us could resist illegal temptation, but some of us don’t. Remember, all board members are accountable for the fiscal health of their property, not just the bookkeeper.

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7

Communicate openly with homeowners. Transparency is your friend. It douses idle speculation. Communicate openly about meetings, policies, issues, and, especially, money. If you don’t, you will be stuck in the hallway repeating yourself to everyone you meet. You might improve your communication skills that way; however, your time management will suffer.

8

Document everything, and keep all records. It’s simple.

Misunderstandings disappear quickly when you can whip out documentation to support your claim. If nothing else, it keeps our memories sharp.

9

Get at least three bids for important projects. This takes time. Remember step 5? It’s in the best interests of the association. When you do find contractors you trust, stick with them. The 3-bid rule is no longer applicable for them, unless something changes.

10

Establish a budget and adequate reserves. It’s difficult to know if you’ve arrived, if you don’t even know where you’re headed; hence, the importance of a budget. Without adequate reserves, you will be limited in which projects can be addressed.

11

Save for future capital projects. This ties into step 10. Some people have never seen this kind of money before and believe it has to be spent, because there’s so much of it. “Much,” of course, is a relative term; especially, when you realize the costs of capital projects are beyond your financial capacity to fulfill them.

12

Manage your time. With only 24 hours in a day, a board position can morph into a part-time or full-time, unpaid job. With so many other personal commitments to attend to, a board member may come to resent the necessary or expected time commitment. If board members all pitch in to help, no one person bears the whole burden.

One particular time drainer is dealing with complaints. In this case, homeowners may come to resent the bearer of bad or unpleasant news.

If time management or other issues become too overwhelming, you could always hire a property management company to help you out.

Just remember to get at least three bids.

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Man’s Best Friend or an Association’s Worst Enemy?

Dealing with Pets in a Community Association

N

ow that the snow has melted, many associations are discovering multiple areas of green space in their communities that have been damaged by pet waste over the winter months.

Those brown patches of grass are unsightly enough, but what about the more offensive solid waste left by pets—and their owners?

And what about all the animals that have been cooped up all winter and now have an opportunity to run free? How can an association regulate issues related to animals in the community?

To be clear, the great majority of animal owners are responsible. They pick up their pet’s waste immediately, they keep their animals on leashes when outside, and they

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By Nancy T. Polomis, Esq. | Hellmuth & Johnson, PLLC

take care to control their pets, particularly around other people (and other animals). To those owners: Thank you.

But, as with most groups, a few “bad apples” create problems for all association members, and cause headaches for association management and association boards.

its grounds remain in good condition and visually appealing? Is it because the style of community (e.g., an apartment-style condominium community) has limited green spaces and just isn’t designed to have lots of animals? Or is it because the members of the community have expressed a desire to live in a community free of animals?

Establishing pet rules

Pick it up!

Pets are permitted in most community associations, though there are some communities that prohibit them. Most associations, however, also have rules related to the keeping of pets in the community.

When establishing rules, it’s important to consider why the rule is being adopted. Is it because the community wants to ensure

While it may seem obvious to most that it is simple neighborly courtesy to pick up a pet’s waste—and, in fact, most city ordinances require it—most associations have a specific rule requiring owners to do so. It seems that, absent a specific rule requiring owners to pick up their pet’s waste, some owners contest an association’s right to declare a

failure to pick up waste to be a violation of the governing documents because “it’s not in the rules.” (Never mind that all residents of a city are subject to city ordinances, and that most associations’ governing documents provide that a violation of an ordinance or law is a violation under the governing documents, which also entitles the association to impose fines.)

Of course, determining whose waste it is can sometimes create friction. Owners claim “my dog’s waste doesn’t look like that,” or “my little dog’s waste isn’t that large,” and every possible variation of such claims.

Several years ago, apartment complexes on the East Coast began requiring tenants to have their pet’s DNA to be registered as a condition of having the pet in the complex.

When pet waste is found on the apartment’s grounds, it is sent to a lab for analysis. If the DNA of the waste matches that of any animal in the complex, that pet owner is assessed the cost of the lab testing and is assessed a fine for failing to pick up the animal’s waste.

DNA testing is not inexpensive, and whether an association could require a homeowner to submit a dog’s DNA as a condition of having an animal (as opposed to an apartment complex owner requiring a tenant to do so as a condition of leasing an apartment in the complex) is an open question. Further, in many communities, people from other neighborhoods often walk their dogs through the association. Where dogs other than those who live in the community are potentially relieving themselves within a community can make it difficult to match waste to a particular dog, since dogs living outside the community will not have their DNA on file with the association.

For most communities, even considering a requirement for DNA testing is a drastic measure. In most communities, residents know who the violators are—and, usually, those same violating pet owners repeatedly violate the rules requiring waste pick up.

Restricting the number and size of animals Many associations impose restrictions on the number of animals that may reside in a given home. These rules are often more restrictive than city ordinance, and are most common in apartment-style condominiums, given the size of homes in such communities and the necessity to bring animals on to elevators and through common hallways so that they can be walked, etc.

Crafting rules that impose restrictions on the number and size of animals is relatively simple: No more than 2 dogs, no dog over 50 lbs., etc.

As discussed below, however, enforcing such rules can prove far more difficult.

“Working with management or legal counsel to establish clear rules that are intended to encourage responsible pet ownership is the first step to creating a community where pets and people can live harmoniously.”

Restricting the breed of animals More and more associations are seeking to adopt restrictions on certain breeds of animals—dogs, in particular. As with number/size restrictions, it may be relatively simple to adopt a rule that states certain identified breeds—most notably “pit bulls”—are prohibited. However, “pit bull” is a type of dog, not necessarily a specific breed. Associations adopting rules restricting or prohibiting breeds should consider why the rule is being adopted. In most cases, associations are concerned about the dogs being overly aggressive, causing injury to people or other animals, etc. In such cases, associations are better served by adopting rules that address a dog’s behavior rather than a dog’s breed.

Enforcing pet rules Once an association adopts rules regarding animals, it must enforce them. Any rule that will not be enforced should not be adopted.

If an association chooses not to enforce a rule for some reason, it runs the risk that it then waives the ability to enforce that rule in the future.

In general, most associations adopt an enforcement practice under which the association issues a warning to an owner on a first animal violation, a fine on second and subsequent violations. Often, the fines escalate upon repeated violations. It is important to remember that in associations subject to the Minnesota Common Interest Ownership Act (MCIOA), Minnesota Statutes Chapter 515B, the association is required to provide the unit owner with notice of the violation and an opportunity for a hearing before any fine is imposed. (See Minnesota Statutes Section 515B.3-102(a) (11).) Many associations’ declarations set forth specific time periods in which an owner must request the hearing and in which the association must hold a hearing and provide its decision on the hearing.

Some rules are far easier to enforce than others. It is fairly simple to enforce rules regarding the number of dogs/cats permitted in a home at any given time: just count them. Enforcing rules imposing restrictions on dog size can be problematic.

Many associations have rules that state that, if an owner believes his dog to be within the weight restrictions, the owner can submit a veterinarian’s statement verifying the dog’s weight. Bear in mind, however, that such a statement verifies the dog’s weight on that particular day, at that particular time. For an animal that is close to the maximum size, weight on one day could be within the restrictions, while weight on another day could be in excess of the maximum permissible weight.

As discussed above, enforcing rules regarding pet waste can be difficult if an owner contends that waste is not his pet’s waste. Some associations avoid that

Continued on page 28 27

Minnesota Communit y Living

Man’s Best Friend Continued from page 27 discussion entirely by charging an annual “pet fee” to each owner with an animal (or owners with “outdoor” animals), then using those fees to pay for waste pickup and waste damage repair. Of course, responsible pet owners may chafe at having to pay a fee to cover the costs to pick up other owners’ pet waste, but, absent a system that can definitively identify which pet’s waste is at issue—or one in which offending owners take responsibility for their pets—having all animal owners contribute to the cost incurred as a result of the actions of a few owners’ animals may be the only viable solution. (Arguably, owners whose pets are “caught in the act” could still be fined for the violation.)

Associations that adopt rules restricting specific breeds of an animal should be prepared to encounter owners who assert that their animal is not the restricted breed, but, rather, a breed that may be similar, but not restricted. Here, as noted above, a better course of action for associations may be to regulate dogs’ behavior, not their breeds.

In extreme cases—cases where noncompliance is persistent or where animals are prohibited in a community— an association may have to seek legal intervention to address the violations. In those cases, the association may seek a court order requiring a violator to comply with the provisions of the association’s governing documents (which include the rules)—which may require that an animal be removed from the association. If the association is subject to MCIOA or its governing documents so provide, it may be able to assess the attorneys’ fees and costs

related to such enforcement action against the violating homeowner and his account with the association.

“Pet” or “service animal”?

Whether an animal is a pet or a service animal (entitling its owner to certain accommodations under the federal Fair Housing Act) is beyond the scope of this article.1 However, simply because an animal is identified as a service animal does not mean that such animal and its owner do not have to abide by rules requiring owners to pick up after the animal, or to keep the animal muzzled when outside the home (unless muzzling impedes the animal’s ability to provide the necessary services the animal provides its owner), etc.

Those rules apply to service animals and pets alike, but associations are encouraged to consult with legal counsel to discuss enforcement of rules against owners of service animals before alleging a violation by such owner.

Most associations do not seek to discourage pet ownership altogether. Working with management or legal counsel to establish clear rules that are intended to encourage responsible pet ownership is the first step to creating a community where pets and people can live harmoniously. Enforcing pet rules against those that threaten that harmony is essential to restoring that harmony—and ensuring that the association’s board is acting to protect every owner’s interests.

1. If an owner requests an accommodation of a service animal under the Fair Housing Act, associations are advised to consult with legal counsel to ensure that such a request is properly addressed, both in accordance with the Fair Housing Act and in accordance with the association’s governing documents.

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Elements of Success

By Ted Salgado | Reserve Advisors, Inc.

S

uccess stories are all too often hard to find in ways we can apply as community leader volunteers and professional managers.

Sometimes we hear about a huge project highlighted by a top-rated contractor, chronicling how the project got off the ground, then encountered and met various challenges to the satisfaction of all.

Underpinning these successes, we have found, is something a whole lot deeper that makes the relationships click and the special project or challenge turn to success. We’ll briefly explore three “success stories” and focus on what was common to each success story. These examples include a pool replacement more than 30 stories up, a complete reskinning of a condominium building, and the troubled community that succeeded in remediating defects in new construction.

Our first “success story” started with the apparent need to install a swimming pool liner. The swimming pool was located more than 30 stories inside a high-rise tower. Replacement of the entire pool was thought to be out of the question because of its location.

Instead, installation of a liner seemed to be the best option. The professional manager suggested and the board formed a committee to assist guiding the community to getting the job “done right.” The association had the good fortune of a dedicated community manager who had been with the property for many years, an active board, and a dedicated volunteer committee. Having a committee means more eyes and brains on the problem. In a sense, these three parties or groups (manager, board, and committee) worked to 1) define the goal, 2) define the problem and 3) work toward defining and implementing a solution to meet the end goal. Working together, the manager used prior expertise in understanding the difference between credible estimates in proposed services. The board evaluated a tremendous amount of information and gathered through the management team in committee. The three groups never lost sight of the end goal.

From start to finish, the professional manager worked to identify and build consensus among the stakeholders. The goal was to replace the function of the existing pool with a long-term solution which resulted in the lowest lifecycle cost of ownership for the foreseeable future.

The management team gathered information from contractors and compared these data to independent information contained within the reserve study. The committee gathered detailed information from contractors and their proposals. The board listened intently and evaluated all of the information without rushing the decision.

Replacement of the entire swimming pool — not repair — became the best solution. The final solution, as often is the case, was not the anticipated solution suggested at the outset.

Another community association located in Colorado comprised 10 units in one building, three stories high. Construction dated to the 1980s and lacked an elevator. To make matters worse, the community

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was at a crossroads. Thirty years old and faced with huge expenditures, deferred maintenance, and the real potential of turning completely into a rental income property, the 10 unit owners embarked on a decision-making process with the help of a management team that would secure that community’s future for decades to come. The building, they realized, needed a serious facelift. Old T-1-11 plywood siding and the second life cycle of asphalt shingles were typical of other residential buildings being torn down and re-purposed for other uses. Even with 10 owners, the group was not homogenous with respect to age, long term thinking, commitment or wealth. Some could afford a huge special assessment while others did not want anything to do with the renovation. The association was fortunately blessed with a strong management team, a three-member board and other volunteers who worked to build consensus over three years before the start of the project. Owing to the relatively small size of the association, the management team was typically involved in the financial affairs of the association: collections, payables, and routine financial statements. However, a strong long-term relationship underpinned the need to find alternative methods to fund the project lacking any significant reserves. With the 10 owners understanding that different sources of funding were possible, consensus resulted on the need to renovate the entire building envelope. With this consensus, the group of 10 agreed to replace the entire exterior, doors, windows, plywood siding, the roof system, install an elevator, and replace the exterior balconies and porches. Options for financing for funding for replacements included: 1) special assessment, 2) community association loan, and 3) individual home equity loans. In fact, combinations of all three options were used by the homeowners.

Eighteen months passed and the building took on a new character.

What didn’t change was the location, just steps from the gondola leading up to the ski lifts.

Our last example is a 16-unit duplex, townhome style condominium overlooking a medium-sized downtown area with high rises. Rather than mountains and the view, these homes had a beautiful downtown within walking distance but located in a decidedly quiet residential neighborhood. The problem: major defects in the stucco application on these four-story buildings. I don’t have to tell you that unless you have six or seven figures to argue about, a threatened lawsuit is not an option to resolve defects in construction. Several buildings were at risk of developing mold due to water infiltration. The property was not professionally managed due to its size. Fortunately, several homeowners and a three-member board worked with the developer to understand the nature of the problem, and arrive at a mutually agreed upon long-term solution. The benefit was remediation of the defects in a relatively short period of time — eight months. The committee’s attorney shadowed the process but was never directly

involved. One of the board members had experience in self-managed community associations and was an engineer. First and foremost, the parties arrived at a consensus or common goal to quickly resolve the dispute. Doing so would help preserve the reputation of the developer in the community while unencumbering the value of the units’ marketability. Instead of the major six or seven figure lawsuit taking years, effective remediation of the defects resulted. At the end of the day, the reputation of the developer and the value or marketability of the units would still be at risk even after remediation. Understanding this, both parties made sure that the remediation was successful.

Each of these success stories has several common threads. The swimming pool replacement project used three parties (manager, board, and committee) to 1) define the goal, 2) define the problem and 3) work toward defining and implementing a solution to meet the end goal. Notice the order: goal, problem and solution. All too often we tend to think of “eliminating the problem” as the goal. Rather, the goal helps to define the problem more holistically. Imagine if the three groups defined the goal or problem in different ways. This would be a recipe for acrimony. Consensus among the three parties was key achieving a solution consistent with eliminating the problem piloted by a common goal. In this case, we have a full-time manager helping to assure that the committee and board kept to the goal of having long-term uninterrupted use of the pool with lowest future lifecycle cost of ownership. In essence, without a full-time professional management team, keeping everyone on the same page can become a problem that transcends the original problem of a deteriorated swimming pool.

• • • • •

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The building envelope project in Colorado had an apparent problem of a tired and old exterior. In fact, the problem was one of insufficient reserves (capital) and a lack of understanding/identifying alternative sources to fund the project. The goal, of course, was quite different than the problem of insufficient capital. The goal transcended a mere “replacement project” and became a “renovation” which saved the community from eventual re-development through demolition.

Strong leadership skills of the management team and board helped to first build consensus about defining the goal, then defining the problem, and finally creating a financing solution customized for each of the 10 owners. With the financing solution in place, the goal to renovate was realized within 15 months, start to finish, with a new condominium exterior in the historic district of Telluride.

By now you might easily spot these three traits of success. Resolving the stucco defect issues in the 16-unit condominium in our final example illustrates again how an association identified the goal, defined the problem and arrived at a solution through consensus building. At each stage, the key stakeholders arrived at a consensus or agreement through leadership by the management team and one or more community leader volunteers. We hope you can achieve the same success stories in your communities whether the issues are routine budgetary or more significant challenges.

The Value of an HOA From the m ouths of res idents ...

The overwhelming majority of Americans who live in community associations say they are satisfied with their association experience. The community association concept works—for neighborhoods, municipalities, the U.S. housing market and the nearly 66 million Americans who choose to make their homes in common-interest communities.

(CAI - 2014) While some believe that HOAs don't offer value, we connected with a few homeowners who believe their HOA helped everything from pet waste, to community relations and safety. The CAI report from 2014 supports exactly what we found, when speaking to individuals.

On average, 90% of res idents are s atis fied w ith their as s ociations and 92% of res idents are on pos itive terms w ith their HOA board members .

A recent es timate s tated there are over 325,203 HOAs in the U.S.

"The value of an HOA lies in being able to keep a community s afe and maintained, w hile s us taining property rights . Having liveable rules and regulations can help provide thes e. An HOA allow s neighbors and homeow ners w ho live in the community to w ork together for the s ucces s of all." - Naomi B retz

70 % 32

of res idents s ay their as s ociation rules protect and enhance property values . Only 4 % s aid the

Minnesota Communit y Living

oppos ite w as true.

"I lov e the f act that m any hands m ake light w ork. I pers onally liv e in a tow nhom e becaus e of the com m unity liv ing and do not w ant the res pons ibility of m anaging the grounds on a pers onal lev el." - M eg M iller, Tow nhom e R es ident

Stories to Inspire Your HOA...

Naomi Bretz

"We have had issues with pet waste, on our sidewalks, lawns, and common areas. It was getting very frustrating for those without pets, and those who are responsible pet owners. To fix the issue, we started a pet program. First, we installed waste stations with bags/disposal sites and offered weekly clean-up. Second, we started registering pets (dogs) within the community as to owner, name and DNA. Last, the association sent the DNA of the offending waste out for processing. Holding pet owners accountable with a clear process has helped alleviate issues for everyone in our community. We can't track those who live in the surrounding communities, or those who sneak their pets without registering. Overall we have been very happy with the response and results"

"We have a board, so a group of dedicated volunteers can decide for the larger whole.

While anyone can attend the monthly board meetings, it is beneficial to have a core group who knows the inner workings of the community and then make informed decisions for the best interests of the HOA." - Meg Miller, Townhome Resident

Meg Miller

"We will be going into our fifth year of celebrating National Night Out as a community. We have the local police and fire professionals stop by. We have a pot luck picnic, door prizes and visit. This has strengthened our community by offering warm conversation, getting to know our neighbors better and being watchful of community safety. All of this is made so much easier due to the fact that w e have New Concepts working with us. Not any one of us could do the stellar job that they have for us for the past 10+ years."

@CAIMN

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Minnesota Communit y Living

CAIMinnesota

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Ask the Attorney by

This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin. com/groups?gid=1769135

Q: A:

We have a board member who sometimes travels for work. If he is away, can he attend a board meeting over the phone? Or via email?

Most associations are governed by the Minnesota Nonprofit Corporation Act (found in Minn. Stat. §317A). The requirements of Board meetings are detailed in 317A.231. Subdivision 3 states that: A director may participate in a board meeting by means of conference telephone, or, if authorized by the board, by such other means of remote communication, in each case through which that director, other directors so participating, and all directors physically present at the meeting may participate with each other during the meeting.

Therefore, by default a board member may appear by telephone. If the board allows, a director may appear via other means, provided that all directors can still participate in the meeting. This would allow the use of a technology such as Skype to be used for a traveling member.

The provision that each director be able to participate with each other during the meeting would exclude the use of email or text messages as a form of attendance, as they would not provide for simultaneous participation.

Nigel H. Mendez, Esq. | Carlson & Associates, Ltd.

Q:

We have a board member who was recently divorced. He provided his ex-wife with a quitclaim deed and moved out of the association.

His ex-wife wants the board to remove him from his position on the board. Do we have to do that? If so, how?

A:

Interesting situation! Your bylaws will hold the answer.

The bylaws provide the requirements for being a director.

If ownership of a unit in the association is one of the criteria, then it is a simple answer — yes, he should be removed as a director as he no longer has an ownership interest in the unit. If the bylaws do not require ownership, the answer is a little more complex.

As you will recall from a previous column, the directors are elected by the homeowners, and the officers (president, secretary, etc.) are elected by the directors. Officers can be removed or replaced by a majority of the board at any time (provided your bylaws don’t require cause). An officer who is stripped of a position remains on the board as a director at large. In order to remove a director from the board, there must be a violation of the eligibility requirements of the bylaws, or a vote of the membership.

Many associations have ongoing requirements of their elected directors. Some common ones are attendance at board meetings (must attend at least 3/4 of the meetings each year, etc.) and remaining current with their assessments. If a director fails to meet ongoing eligibility requirements, they can usually be removed by the other directors via a simple majority vote of the board.

If the director in question meets all requirements of being a director, you will have to turn to the membership to decide if he should be removed. Unless your bylaws provide differently, directors who were elected by the members are removed by a majority vote of the members. Minn. Stat. 317A.223(Subd. 4). A special meeting of the members will need to be called in accordance with your bylaws.

To have a question answered in a future article, please email it to me at nmendez@carlsonassoc.com with the subject line “Ask the Attorney.” While I can’t promise that all questions will be answered, I will do my best to include questions that have a broad appeal. Questions will also be answered by other attorneys practicing in this area of law.

The answers are intended to give the reader a good understanding of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.

CAI-MN is looking for article contributions.

Submit your article online at www.cai-mn.com under the Resources Tab or email to suey@cai-mn.com

Manage your subscription and more at CAI-MN.com Subscribe and unsubscribe online at www.cai-mn.com by editing your user profile.

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LS West, LLC

Should your Property Manager be your Contractor?

By G. Leonard West/LS West, llc

Roofing & Sheet Metal Contractors Should your Property Manager be your Contractor?

By G. Leonard West/LS West, llc As roofing contractors, we are very active with community associations and property managers. We have relationships dealing directly with owners, board members and property managers alike. Often times we work for a general contractor who also happens to be the property manager.

As roofing contractors, we are very active with community associations and property managers. dealing directly with manager/general owners, board members ThereWe are have some relationships who take the position that the property contractor and property managers alike.a conflict Often times we work for a general contractor whocan also to combination creates of interest.

Unfortunately, in any business, there behappens cases fraud andmanager. inappropriate business practices. It is understandable that those outside of the be the of property management/contractor relationship can be suspicious. We ourselves have been asked about our relationships with management or board members.

Is there preferential There are some who take the position that the property manager/general contractor treatment? Are there favors or exchange of gifts? Can management be an impartial agent?

combination creates a conflict of interest. Unfortunately, in any business, there can be cases of fraud and inappropriate practices.

Ittypes is understandable that those outside of the Community associationsbusiness require many different of professional services.

Each management/contractor can be suspicious.

We ourselves beenofasked association board hasrelationship its own personality and philosophy that determines have what level about our relationships management orvendors. board members.

Is there preferential service they require with from management and There are associations that are very hands-on willfavors be a la carte in their selection services from their management treatment?

Areand there or exchange of gifts?ofCan management be an impartial agent? company. Then there are those who require a full service management company that will provide general contracting services.

All associations require the services of a Each Community associations require many different typeswill of professional services. contractor at some time. High level, commercial grade projects with multiple trades may association board has its own personality and philosophy that determines what level of require a general contractor.

service they require from management and vendors. There are associations that are very hands-on and be a in la working carte inwith theira management/contractor selection of services from their management There arewill benefits combination.

Bundled company.

Then those require a fullAn service management company that will services canthere often are bring betterwho pricing and value. established relationship with a quality contractor critical in times of emergency.

It is important note that provide general iscontracting services.

All associations will to require thea management services of afirm that does not operate as a general cangrade be perfectly capable handling an contractor at some time. High level, contractor commercial projects withofmultiple trades may association’s contracting needs. There can be advantages in bypassing the general require a general contractor. contractor. Direct control will allow you to choose and manage your own subcontractors.

This can benefit quality and cost control.

There are benefits in working with a management/contractor combination. Bundled services can often better pricing and An established Whatever pathbring an association chooses for value. their contracting needs itrelationship is important towith a quality establish a relationship with their contractor(s).

The relationship must have trust and contractor is critical in times of emergency. It is important to note that a management firm integrity.

You willas pay a premium for qualitycan contractors.

Excellence in materials, that does not operate a general contractor be perfectly capable of handling an workmanship and guarantees do not always with the in cheapest price.the Demand association’s contracting needs. There can become advantages bypassing general workmanship excellence. It is very rare that a project fails or requires repair because of contractor. Direct control will allow you to choose and manage your own subcontractors. manufacturing defects. Demand safety. There should be no second thought to protection This can benefitorquality andDemand cost control. of person property. accountability. Do not let your contractor’s promises become excuses. Choose a contractor who can meet these demands. You will have made the

Whatever an association chooses for their contracting needs it is important to rightpath choice. establish a relationship with their contractor(s). The relationship must have trust and integrity. You will pay a premium for quality contractors. Excellence in materials, workmanship and guarantees do not always come with the cheapest price. Demand workmanship excellence.

It is very that a project fails or Rochester requires 507-NEW-ROOF repair because of Minneapolis 612-USA-ROOF  rare ProfessionalRoofers.net manufacturing defects. Demand safety. There should be no second thought to protection Communit yDemand Living accountability. Do not let your contractor’s promises 37 of Minnesota person or property. become excuses. Choose a contractor who can meet these demands. You will have made the

Gathering of Angels Recap

By Monte Abeler | CAI-MN Account Executive

O

n April 23, 2015, people within the Minnesota community association industry came together at Jax Café to support the efforts of a local charity, Minnesota Adult & Teen Challenge. During this two-hour event, attendees had the privilege of hearing the testimonies of three individuals going through the program at MnATC. The testimonals were powerful, moving, and inspiring. Attendees also enjoyed some food, were able to converse with industry peers and had the opportunity to bid on silent auction items. This annual event is an exceptional way for the community association industry to support our community and learn more about how we can help Minnesota Adult & Teen Challenge clients gain hope, healing and freedom in their lives. This year’s Charitable Outreach event raised more than $5,000 for Minnesota Adult & Teen Challenge.

For nearly 30 years, Minnesota Adult and Teen Challenge has restored hope to people struggling with drug and alcohol addiction.

In addition to their effective and affordable Short-Term Program, Life Renewal Program, and their distinctive Long-Term, FaithBased Recovery Program, they offer extensive prevention and transitional/aftercare services.

This meaningful event was organized by Community Associations Institute – Minnesota. ALL PROCEEDS have been donated to Minnesota Adult and Teen Challenge! We are grateful for the event sponsors and contributors. We hope to make a significant difference in the lives of people!

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Minnesota Communit y Living

Thank You, Sponsors!

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