Condo Media - October 2020 - 39

I advised him that he and his fellow board members need only do
what a reasonable and ordinary person in a like position would do.
ordinary person in a like position
would do. That would include weighing
the substantial costs to the association
fighting this project.
REASONABLE AND
ORDINARY QUESTIONS
He asked me for specifics and standards, and I again looked to provisions
from the Rhode Island Condominium
Act for some guidance:
"§ 34-36.1-3.02. Powers of unit
owners' association.
(a) Except as provided in subsection
(b) (which prohibits restrictions
imposed on Declarants and is not
applicable here,) and subject to
the provisions of the declaration,
the association, (through its Board),
even if unincorporated, may:
(6) Regulate the use, maintenance,
repair, replacement, and modification
of common elements.
(4) Institute, defend, or intervene
in litigation or administrative proceedings in its own name on behalf of itself
or two (2) or more unit owners on matters affecting the condominium.
(17) Exercise any other powers necessary and proper for the governance and
operation of the association."
Now, using the above three provisions, I made the following observations
and asked the following questions:
Does this proposed project next door
affect the use of the condominium per
section 6 above? The answer is another
question: Does increased traffic affecting the access into and out of the
condominium materially affect the
use? One could argue yes and no. Is his
board authorized to formally oppose
the petition before the Planning Board?
Yes. The issues here are: How much
time, expense, and effort must the
board expend?

This particular board member
wants to not only oppose this petition
with the town, but plans on appealing
the inevitable approvals to a state
administrative hearing board. If it's still
approved there, the plan is to institute
litigation in superior court, expending
tens of thousands of dollars on experts
and attorney's fees, not to mention the
enormous amount of volunteer hours.
Certainly, the board has the expressed authority to appear before a
Planning Board or even to litigate per
section 4 of the statute, but is it "necessary" and "proper" for the operation of
the condominium per section 17 above?
I'm not so sure that increased traffic
from an off-site project, which will
make it more difficult to enter the con-

dominium would trigger the obligation
to oppose the project, or worse, spend
the association's time and treasure.
I do not have the exact answer, but instead, I am just asking the questions.
My client board member is stressed
to the max about this project, thinking
that he and his board have a fiduciary
obligation to "fight this all the way."
But why not let the individual unit
owners individually oppose the project
if they have an issue with it? That might
add a few years to his life expectancy.
■ FRANK A. LOMBARDI, ESQ., CCAL
IS A PARTNER IN LOMBARDI
LAW GROUP.

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