Madison man cleared in covenant case

December 7, 2007

Madison man cleared in covenant case

Elizabeth Crisp
elizabeth.crisp@clarionledger.com

A judge has found resident Richard Atkinson not guilty of violating a provision of the city's zoning ordinance that makes a violation of one's homeowners association covenants is a crime.

Municipal Court Judge Cynthia Speetjen said she could not find Atkinson, who was accused of continuing to lease a home in the Northbay subdivision after Northbay Homeowners Association directors banned rentals, guilty of a criminal offense.

After hours of debate between city attorney John Hedglin and Atkinson attorney Jim Pierce, the judge said she thought the issue was too confusing for Atkinson to be certain that he was committing a crime.

Most of the debate focused on the fact that the provision that bans homeowners from leasing houses in Northbay was adopted as a resolution by the association’s board of directors rather than being adopted as a covenant.

There also was debate over the timeline on passage of the resolution, when it was filed and when the lease was signed.

“At the end of the day, before you can be criminally punished you have to understand the crime,” Speetjen said. “We've gone back and forth over this, and it's still not clear.”

Though some questioned the constitutionality of the city ordinance, Speetjen did not address that issue. Others could still be arrested for violating it, she said.

“They will continue to be reviewed on a case-by-case basis,” the judge said.

Atkinson was the second person to go to trial over an alleged violation of the ordinance.

In October, Cross Creek resident Gary Beck was convicted of violating the same city ordinance because he did not obtain architectural approval from his homeowners association before building a greenhouse in his back yard.

Beck filed an appeal in Madison County Court on Nov. 2, questioning the provision's constitutionality. A trial date will be set during the court's docket call Monday.

If convicted, Atkinson faced a fine of up to $100, and he could have been arrested again if he continued to lease the home.

According to the city ordinance, a second offense would be punishable by a fine of up to $500 and five days in jail. A third offense is punishable by a $500 fine and up to 90 days in jail.

Beck received the $100 fine and received a notice this week that he has 30 days to take down his greenhouse, make certain alterations or face arrest again.