*sigh* I'm a legal secretary AND a good portion of our practice works with HOA's. This is all going to be mandated by your state and local government (how much of which depends on the state you're in).
Your Covenants and Restrictions document will tell the tale of what they can and can't do -- it is also going to be a completely necessary document if you have to consult an attorney.
Don't just ask an attorney to "represent" you and DON'T let it get to the point of a lawsuit.
A few questions --
1. At this point do the homeowners actually have control of the HOA? or is it still in the hands of the developer? (big huge massive difference)
2. The best bet is for the dog owners to get involved in the Association. You have to go to meetings (and your C & R will tell you how much notice they **have** to give for a meeting, etc. -- can it be posted on a board no one looks at, do they have to notify you by newsletter?) -- but some of you folks HAVE to get involved or the dog-haters WILL (they love negative stuff -- trust me -- you'll get a very few who can railroad something in like in a heartbeat)
Unfortunately it can be the nastiest and worst who get involved -- people who have nothing better to do than watch out their window for what the neighbors are doing.
It's a thankless job at best -- but it's vital there be adequate representation at meetings or they WILL pass cockamaymie restrictions that will make life heck on the rest.
3. Are you prepared to learn what you NEED to learn to fight this?
In a lawsuit the association would have to sue individual homeowners for non-compliance. OR owners would have to individually or collectively sue the Board -- but for what? Unfairness? Nope -- that's not illegal. You can't sue people for being jerks -- nor for being mean, or anything like that. You can only sue someone for breaking the civil law.
So what you MUST do is find out what the Association can and can *not* do. And what has to be done to prevent unfair restrictions from being imposed.
Honestly, the best thing to do is go thru the C&R yourself -- and mark the sections, to begin with, that have to do with the common areas, pet ownership, AND maintenance of the common areas (planting, grass, etc.) and also things like special assessments.
Once you're relatively familiar with it - then contact an attorney ***familiar with HOA work*** Call your local bar association (the American Bar is to attorneys what the AMA is to doctors) -- typically it's county-based, but I'd bet your state has a website. But call the County Bar Assn for your county (where you LIVE) and ask them who does HOA work -- particularly someone who doesn't SOLELY do HOA stuff. Typically that would be someone who represents Associations and usually they won't touch working with individual homeowners (conflict).
Call the attorneys office -- keep it short and don't try to explain *everything* to the poor receptionist. Simply say you live in ABC HOA and you and several other homeowners have a potential problem with the HOA and you simply need some direction. There is NO lawsuit, there is NO major time commitment. You literally want to buy half an hour to an hour of the attorney's time. PERIOD. Either by phone or in person. (If you **can** find those Covenants and Restrictions ONLINE in your county's public record so you can email it to the attorney so no one has to print out 100 pages and pay copy cost!!!!)
Stress you don't want this to be a long term thing, you don't want to sue, you just need some pointed education as to how you individual homeowners can protect yourself.
Depending on where you live, attorney's can work for $150 an hour to $500 an hour.
But doing this *NOW* rather than after this comes to a head will save everyone bazillion's of bucks.
4. Can you organize yourself?
Find a cheap 'expert' -- call your local community college and see if there is someone who is an expert in landscaping, horticulture, etc. See if you can talk to them on the phone and ask questions. Ultimately, you may want to see if they would do a notarized statement (a sworn statement -- usually it's called a "Jurat" and it needs to be given in FRONT of a notary public in your state) -- but literally at least one "expert opinion" that the damage to the grass is *not* caused by dogs, but rather by poor planning.
BE CAREFUL -- no one wants to get caught on the bad side of the developer (who may wind up hiring them in the future). But simply a statement that they've seen it, and in their opinion, the "damage" (be specific -- "the 10 foot wide strip between Point A and Point B on the diagram" -- or whatever is appropriate) isn't caused by urine burns from a dog, but rather is directly the result of poor drainage, improper light/shade, etc.
This will kill their argument. But getting a NOTARIZED statement that is a sworn statement (you may have to barter for the expert's "time" -- typically experts get paid, and you are going to want this for free, so offer to walk the guy's dogs, or see if one of you homeowners has some "service" or job-related thing you can offer as a barter) -- this means that ULTIMATELY if they do try to take something to court, you don't have to subpoena the 'expert' (which someone would have to pay for) but rather, a sworn statement is admissible in the courts of law.
Also, I'd get statements IN WRITING from homeowners as to how often they use that particular area, and willingness to use the other area voluntarily in an effort to cooperate.
5. Can you encourage dog owners to be self-policing.
I can almost promise you this is NOT about this particular area's damage. This is people who dislike dogs, dislike their mess, and dislike their "noise" using a particular and convenient situation to further their point. Typically they will go to unbelievable lengths to get their way.
6. Can you do a general drive thru of the whole area under the HOA and collect data? Also some online sleuthing may pay off BIG time. Contact me and I can help you with this one.
A. In general, get an idea of how many homes are in foreclosure, or lots aren't built. You want to know how financially "healthy" the HOA is (that's going to be their weak point)
Right now HOA's are typically hurting. Because people in foreclosure generally don't pay their dues. There may be a HUGE number of folks not already in foreclosure who ARE behind on their dues.
Depending on where you are, see if you can find the county property appraiser's website and you will likely be able to get a list of ALL the homeowners in the area covered by the HOA.
THEN ... go to the County Clerk of Court's website and find the recorded public record. Likely you will be able to check EACH of those names of owners and see if there is a lien the Association has placed on each property (again, this is going to tell you how financially stable the Association is -- they'll lien someone who hasn't paid HOA dues -- they may not have gone all the way to foreclosing, but a lien prevents the property from being sold without some part, at least, of that lien being satisfied -- and again that completely depends on your state, local laws). You may find interesting stuff - like Mr. Mouthy who is harassing you may himself have a lien placed on his property because he's behind n dues (even if he's an Association offical).
Bottom line - it costs BIG money to file a lawsuit. Even in small claims court (damage of this nature would likely be under $2000 or so and is probably not just county court but "small claims";) it can cost $250 to $500 JUST to file suit, plus the cost of the attorney who filed the lien and then filed the lawsuit.
A lot of HOAs will place liens and they may have an attorney send demand letters saying "you ow $__________ PAY NOW" -- but they may often be reluctant to foreclose simply because the Association itself doesn't WANT the house. They just want the assessments paid.
Same thing with nuisance lawsuits regarding covenants and restrictions -- they may send you a demand letter saying "pay $_____ for your share of the damage to the common area" -- but that's really shakey and they may DEMAND compliance or monies to refurbish landscaping, but that doesn't mean they will go to great lengths to bring a lawsuit to it's conclusion. (even IF the Association actually foreclosed on someone over unpaid assessments or a C&R violation/restriction) -- the Association does NOT want your house. Because then they'd have to pay taxes on it and likely could have a difficult time recouping ANY profit.
But this is what I mean by finding out what you can do and what isn't sensible to do.
There may also be laws regarding the easement they have with the railroad -- there may be written cautions about how far away homeowners MUST stay from that track -- telling someone they GOTTA walk their dogs there may patently be illegal -- but it would be hard for you to ascertain that. An attorney could find out.
This is a HUGe deep topic. Holler if i can help -- I am NOT an attorney and I have to be careful not to appear that way -- but I can give you some basic info if you get stuck.