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Subject: FW: Sycamore Heights: Proposed AlternativesTo E e eelImtinsnet-rf�f i_otal e aLnce of Common Area) Provided to the City Council After Distribution of Packet Date From: Jennifer Lucas [mailto:jlucas@a Hughes- Gill.com] Sent: Monday, November 16, 2015 9:30 PM To: dcasarez©vierramoore.com Cc: Mike Hughes Subject: Sycamore Heights: Proposed Alternative To Development r Dear Board Members: of Lot D (Conveyance of Common Area) We understand that the Association is concerned about plans to develop nearby property, and specifically about the City's intention to provide access to the newly developed property by extension of Sunset Creek Lane. We have been asked to provide an opinion regarding the feasibility of an alternative concept that is (as we understand it) being considered by the City after discussions with a Board member, whereby the Association would convey a portion of Common Area Lot A (the Association's open space Lot at the end of McCutchan Court) to the City for construction of a road to provide ingress /egress to the new development. In order to provide this opinion, we reviewed the Declaration of Covenants, Conditions and Restrictions of Sycamore Heights, recorded in Alameda County on December 31, 2003 as Doc. No. 2003746702 ( "CC &Rs "), and the Bylaws of Sycamore Heights Owners Association, certified on 04/14/2003 ( "Bylaws "). In short, our opinion is that while the Board is authorized to convey Common Area, the proposed use (a public road) of Lot A is prohibited by the CC &Rs. Accordingly, even if the Association did convey a portion of Lot A to the City, no road could be constructed in that location. While it might be possible to revise various documents to circumvent this restriction, efforts to do so would be time - consuming, costly, and complicated. 1. The Board Has The Authority To Convey Common Area Pursuant to section 7.5 of the CC &Rs: ... the Board shall have the power and right in the name of the Association and all of the Owners as their attorneys -in -fact to grant, convey, dedicate, mortgage or otherwise transfer to any Owner or other person or entity, fee title, easements, exclusive use easements, security rights or other rights or licenses in, over, or under the Common Area that, in the sole discretion of the Board, are in the best interests of the Association and its Members. Notwithstanding anything herein to the contrary, in no event shall the Board take any action authorized hereunder that would permanently and unreasonably interfere with the use, occupancy and enjoyment by any Owner of that Owner's Lot without prior written consent of that Owner. Accordingly, the Board may, under certain circumstances, convey Common Area such as Lot A (or any portion thereof). Although it is questionable whether the traffic increase on McCutchan Court resulting from the relocation of the proposed street would constitute an "unreasonable" interference with the affected Lot Owners' use, occupancy and enjoyment of their Lots, prior to any conveyance, the Board should obtain written consent of those Owners in order to ensure compliance with the last sentence of section 7.5. One possible impediment to the ability of the Board to convey common area is presented by Section 3.3.2 of the Bylaws, which requires a member vote to "sell property of the Association having an aggregate fair market value greater than 1