Bay Breeze Point “A Premier Waterfront Community” HOA Fencing Study Group January – September

Phase 1 -- Study Group Objective Identify legal status of two areas of fencing: – Black metal fencing that runs along the waterway behind several homes on Bay Point Drive – White masonry fencing that runs along 30 th Bay behind several homes and around the entrance to Bay Breeze Point on Pleasant Avenue 2

Phase 1 -- Study Group Overall Conclusions HOA has NO ownership of, liability for, responsibility for, or access to the black metal fence behind the eleven (11) Bay Point Drive homes/lots. HOA has NO ownership of, liability for, responsibility for, or access to the white masonry fence along 30 th Bay and at the Pleasant Avenue entrance with the exception of the easement pertaining to the four (4) sections south of Pleasant Avenue around the pumping station. (June Update: Easements were issued to Developer Moore and never transferred – City of Norfolk is working the issue.) – Access to the white masonry fence located on City of Norfolk property was granted to the HOA via a variable perpetual landscape easement (adjacent to Pleasant Ave) and a four foot landscape maintenance easement (adjacent to 30 th Bay). (June Update: Easements were issued to Developer Moore and never transferred – City of Norfolk is working the issue.) 3

Phase 1 -- Recap of White Masonry Fence Findings & Conclusions 30th Bay St Pleasant Ave Bay Breeze Point 1994 was private property South Fence/Wall1994 wall built by Moore 2010 is private property 1989 was private property Entrance – South Side1990 transferred to city 1994 wall built by Moore w/easement 2010 is city property 1994 was private property Entrance – North Side1994 wall built by Moore 2010 is private property 1994 was private property North Wall2002 was private property 2002 wall built by Letchworth 2010 is private property N City Pump House

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Phase 2 -- Study Group Objectives Identify potential options for white masonry fence/wall given its legal status, e.g., maintenance Consolidate potential options for presentation to HOA for consideration and/or approval 6

Phase 2 -- Initial Plan of Action Group Meetings – June Initial meeting: recap Phase 1 study; discuss way ahead for Phase 2 June 22-July 5: Group members develop options; then options are consolidated for July 12 th meeting – July Discuss consolidated options and identify items for further evaluations, etc. – August Finalize options for presentation during September 9 th HOA meeting Draft Phase 2 Executive Summary 7

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Backup Slides 11

Study Group Process Base Study and Results on facts not opinions Identify legally binding items 12

Study Group Actions Study Group Members – Jerry Baker, John Bergman, Jim Casey, Fred Sciulli, Fran Scott, and Steve Woll Six group meetings held between January – May 2010 Over 120 man-hours researching and discussing fencing legal status Group will provide the results of its study to the 2010 BBP Board of Directors on May 17, 2010 Group will help the BBP Board of Directors develop and execute a HOA-wide roll out of the study and its results which will culminate with a HOA special meeting in September

Study Group Actions HOA Insurance Policy – talked with agent who initiated fencing insurance coverage (agent is still in place) Norfolk Clerk’s Office – visited the Norfolk Clerk’s Office on February 8/9, March 25/26, and April 8 to search for BBP related documents that may have been filed in that office City Attorney’s Office – discussed white masonry fencing on City of Norfolk property Group Members met with or requested information from several HOA members. Researched pertinent documents Utilized City of Norfolk property website – “ 14

Study Group Findings Chronology of Key Events Circa 1989 – Developer Moore in charge of future BBP Property Circa 1990 – Developer Moore dedicates property by Pleasant Ave Entrance to City of Norfolk for a pumping station and obtains easement for wall & landscaping on that property Circa 1994 – Developer Moore constructs white masonry fence along 30 th Bay from Pretty Lake Ave up to Pleasant Ave and 4 sections north of Pleasant Ave Circa 1998 – Developer Letchworth takes over Circa 2000 – Black metal fence installed Circa 2002 – White masonry fence extended from 4 sections north of Pleasant Ave to Lot 86 (9629 DR) Circa 2003 – BBP homeowners take over HOA Board of Directors and use same Management Company as Developer Letchworth (UPA) 15

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Developer Installed Fencing 19 Black Metal Fence along Little Creek Entrance Channel In place, White Masonry Fence along 30 th Bay and on each side of Pleasant Ave (4 sections on North side) Phase OnePhase Two Extended White Masonry Fence from 4 sections north of Pleasant Ave up to Lot 86 (9629 DR)

Information at Start of Study Black Metal Fence – Runs behind eleven (11) Bay Point Drive homes & one (1) vacant lot – HOA maintains an insurance policy that includes the fence – Fence is similar to Bay Point fencing White Masonry Fence – Runs behind 14 homes and 1 vacant lot and around the entrance to Bay Breeze Point – HOA maintains an insurance policy that includes the fence – HOA funded a major repainting – circa

Information at Start of Study BBP Covenants, Restrictions, Reservations, & Easements addresses “Common Areas” and the responsibilities associated with them, e.g., – Article I, Section 1.8 – defines “Common Areas” as the real estate specifically designated as “Common Areas” on recorded plats of the Properties … executed by the Declarant and recorded in the Clerk’s Office – Article IV, Section 4.1 – Obligates the HOA for “Common Areas” conveyed to the Association and all the improvements thereon – Exhibit C,“Common Area” – None Listed 21

Information at Start of Study City of Norfolk – No documentation transferring ownership of any property to the HOA had been located within the Clerk’s office – HOA has paid no property tax 22

Prior BBP Boards of Directors Attempted to Clarify White Masonry Fence Status White Masonry Fence legal status has been an issue since HOA transition from community developer circa 2002/2003 Prior fencing legal status research on behalf of the BOD appeared to follow earlier management company (UPA) guidance Prior legal opinions appeared to be based on potential intentions and selected statements, not documents filed within the Clerk’s Office 23

Study Group Findings Black metal and white masonry fence legal status has been an issue since the HOA transition from Declarant to homeowners. “Common Elements” -- an essential feature of a condominium development, are all portions of a condominium other than the units that are used by all the unit owners. BBP is not a condominium within the meaning of the Virginia Condominium Act because there are no undivided interests in common elements vested in the unit owners. BBP has NO common areas as defined by “Declaration of Covenants, Restrictions, Reservations, and Easements of Bay Breeze Point”. NO documents could be found within the Clerk’s office that passed any real or personal property to the HOA by Developer Letchworth. City of Norfolk documents for Phase 1 have white masonry fence located on individual lots vice common areas. Phase 2 documents did not initially depict white masonry fence north of Pleasant Avenue (except the first four sections) given it was added circa 2002 by the developer within the boundaries of individual lots and not separate common areas. BBP pays NO property taxes. 24

Study Group Findings BBP HOA obtained insurance coverage for fencing in 2003 based on guidance from BBP Property Manager. BBP HOA’s Board of Directors approved a major white masonry fence repainting circa Legal status of the fence and responsibility for its maintenance had not been formally established. BBP HOA’s Board of Directors approved a white masonry fence resolution (# ) on September 22, 2008 that restricted use of HOA funds and required HOA approval along with special assessment. BBP HOA annually funds landscaping/lawn care for the areas immediately around the Pleasant Avenue entrance – these actions are performed on both City of Norfolk and private property not HOA property. BBP HOA Board of Directors continues to base the majority of the HOA reserves requirement on the white masonry fence maintenance/repairs. 25

Study Group Specific Findings: Black Metal Fence Fence was installed by community developer as a border between bric-brac bank and Bay Point Drive lots. In several cases, fence has been altered by adding gates, etc. Fence location restricts its use to the eleven (11) Bay Point Drive lot owners. 26 Developer-installed fence runs behind eleven (11) lots along Bay Point Drive (twelfth lot fence was owner installed). Fence is located on Federal Government property.

Study Group Specific Findings: White Masonry Fence Fence runs behind 14 homes and on one vacant lot along 30 th Bay and at BBP entrance on Pleasant Avenue. Fence was installed by community developers. – Fence at the Pleasant Avenue entrance (4 sections on North and 4 sections on South side of Pleasant Avenue) and fence to the South was constructed circa 1994 by Moore. – Fence running North from the 4 sections build by Moore, was constructed circa 2002 by Letchworth. All fencing is located on private properties or City of Norfolk property (first 4 sections of fence south of Pleasant Avenue are located on City of Norfolk pumping station property). Two wall and landscape maintenance easements were found – both involve the first 4 sections of fence south of Pleasant Ave on City of Norfolk property. One was a variable four (4) foot wall and landscape maintenance easement and the other was a variable width perpetual easement for the installation and maintenance of a brick wall and landscaping. 27

Study Group Conclusions HOA has NO “Common Area(s)” as defined by the Declaration of Covenants, Restrictions, Reservations and Easements of BBP. White masonry fence was constructed by property developers Moore & Letchworth on property that was incorporated into individual lots (private properties) or property dedicated to the City of Norfolk for a pumping station. Access to the white masonry fence located on City of Norfolk property was granted to the HOA via a variable perpetual landscape easement (adjacent to Pleasant Ave) and a four foot landscape maintenance easement (adjacent to 30 th Bay). HOA has maintained the landscaping at the Pleasant Avenue entrance on City of Norfolk and private properties. Black metal fence was built by the developer on Federal Government Property and has restricted access. HOA should review its current insurance policies and consider future policy adjustments for fencing property coverages. 28

Suggested HOA Roll-out Plan Forward letter to each lot owner: – Explaining the HOA fencing issues – Providing them an executive level summary of study & results – Post executive level summary on community website – Informing them of special HOA fencing meeting on September 9, 2010 at 6:30PM at the Ocean View Library (Mary D. Pretlow Anchor Branch Library) in Meeting Rooms 1&2 Objective: Notify each Lot Owner of the study’s findings and conclusions via mail and/or in person at the September meeting 29

White Masonry Fencing around Pleasant Ave Entrance (circa 2009) 30 City of Norfolk Property Private Property

Pleasant Ave Entrance to Bay Breeze Point circa Note: 1) Pump Station in place 2) White masonry fence