Homeowners association loses bid to keep

$60,000 trucks under wraps


Article Courtesy of The Palm Beach Post

By Daphne Duret

Published April 3, 2007


PALM CITY For two years, Mark Kirk and his 2002 Cadillac Escalade EXT lived the perfect suburban life. Kirk swung the luxury sport utility truck in and out of his driveway in his gated community with little more than compliments from neighbors and friends.

But in 2005, on the heels of a leadership change in his community's homeowners association, Kirk and another Escalade owner received messages from community leaders. Because the cargo areas on their $60,000 trucks made them look like pickups, association leaders said, they would be able to keep their vehicles only if they stashed them as far out of public view as possible.

"My question to them is, 'Does it lower the value of the neighborhood?' " Kirk said. "I could understand if it was a truck with Joe's Plumbing or something written on it, but that's not what it is."

Association leaders took their battle against the Escalade owners to court, asking a judge in September to grant an injunction forcing Kirk and another homeowner, Darrell Willson, either to shove their 19-foot trucks into their 20-foot garages or get rid of them.

The dispute culminated in a weeklong trial before Circuit Judge Robert Makemson last year. An attorney for the Preserve at Hammock Creek homeowners association argued that the Escalade owners violated association rules against "boats, trailers ... motor homes, golf carts, motorcycles, pickup trucks or recreational or commercial vehicles" in any area visible to passersby outside the home.

Stuart attorney Bill Ponsoldt, representing Kirk and Willson, brought in documents from General Motors and local dealers who classified the vehicles as either a sport utility vehicle or a sport utility truck.

On Friday, Makemson issued ruling in chambers siding with Ponsoldt and the Escalade owners, saying that if the makers of the EXTs don't classify the cars as pickups, neither should the homeowners association.

Makemson isn't the first judge who has sided with a pickup owner. In 2001, a Broward County judge ruled that a Sunrise homeowners association rule prohibiting pickups was unfair.

In a 1999 case, Gary and Linda Bach settled a dispute with their Palm City homeowners association over their Dodge Ram after a judge ordered the truck to be weighed and ruled the Bachs should be able to park it outside if it weighed less than 6,400 pounds. The association gave the Bachs and another truck owner parking stickers before a hearing was set to announce the weigh-in results.

Ponsoldt, who received Makemson's ruling Monday, said homeowners associations could avoid similar disputes by updating their laws periodically.

"A lot of these associations have these rules in place from the 1960s and 1970s, and they need to be able to change with the times," Ponsoldt said.

Dennis Murphy, part-owner in a group of condos in the Twin Lakes development in Stuart, said the "no pickups" rule had made renting out his units much more difficult.

"It's a major problem. I've had to turn away at least eight to 10 people away, people who would have made good tenants," he said.

Murphy attributes the pickup rule to stereotypes, saying drafters of the association rules associated pickups with beer-drinking, partying reprobates.

"I think they've just got this mentality about people who drive pickup trucks, and 99 percent of the people who drive pickups are good guys and good ladies," he said.

Murphy said he hopes to use Makemson's ruling to get the Twin Lakes association members to change their policy.

Ponsoldt said he plans to seek attorney fees from the association. An attorney for the association did not return calls for comment Monday.

Bob Diamond, an attorney with the Washington firm of Reed Smith LLP, has spent three decades representing homeowners associations and drafting association rules. The key to staying out of court, he said, is picking battles.

"If there's a case where a homeowner absolutely will not abide by the agreed-upon rules and it can't be resolved in the court system, then that is what the system is there for," he said. "But if I'm the association's lawyer and there are just two owners with Escalades, I'd tell them to just leave them alone."

Monday afternoon, Kirk celebrated his court win by taking his Escalade to the car wash before parking in his driveway.

"I think the thing that gets me the most is how much money we could have saved if they just let it go," he said. "We could have made some improvements, put up some trees. Now the 192 homeowners are probably going to end up with an assessment."