FL HOA Board-grant variance or strict adherence?

Started by JenniferZ1 • 5 replies • 2602 views

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JenniferZ1 (Florida)
Posts: 27

Posted:

I am an HOA president. We have a homeowner who received an ARC approval for a change to a porch modification last fall - 2011. Our covenants provide 12 months from approval to commence the project. The homeowner received his building permit 12 months and ONE day after the original approval.

To complicate matters, it has since come to light that the previous ARC/Board violated FL statute by demanding the homeowner change his original porch design (not submitted for approval-bad on homeowner) based on their subjective opinion of his roof line (straight, not peaked); our CC&Rs have no specific architectural guidelines.

Now the same ARC members are up in arms over the "one day" violation and want the project resubmitted for approval. (They don't seem aware/or able to accept the fact that their only option, if it were resubmitted, is to approve, since disapproval is a violation of FL statutes.)

What can the board do? Can we override the ARC and approve the one day as a variance? Or should we send it back to the ARC? (I apologize for the ridiculousness of this problem, but this is par for the course, as many of you know!)We are in Florida.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The BOD can override the ACC decisions. The whole one day thing seems a bit picky. Sounds like the owner may have an issue with the ACC to have held out that extra day as well. If they approved it and everyone else was on board at that time, then the project gets done. Good luck!

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JenniferZ1 on 12/07/2012 2:06 PM

our CC&Rs have no specific architectural guidelines.

The guidelines would be adopted by the Board and used as a reference by the ARC for determining approval/disapproval of applications.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jen

I say the BOD can override the ACC also the owner could appeal any ACC decision to the BOD.

I say the one day is being picky and the ACC or BOD should grant the one day extension.

An aside. Not all ACC guidelines can easily be defined. As an example in my past HOA/ACC fences could not be more the 4ft tall (finials an additional 6 inches), must be wood, must be natural wood color or white. Plans, pictures, samples, etc. had to be submitted to and the site walked by an ACC Member. There always seemed to be some request, variance, incomplete information, etc. jumping up that had to be dealt with. No matter how tight one makes the guidelines, many requests will still have to be personally dealt with. When such happened, we assigned one member of the ACC to deal direct with the homeowner. In most cases that was enough to clear matters up. Occasionally the whole ACC had to get involved. We had a few that did not like the ACC decisions and they were informed they could plead their case directly to the BOD. The BOD never had to overrule an ACC decision.

One additional note. Having a rule that says one can proceed if the ACC does not reply back is very dangerous. Be smart and say nothing can proceed without the written approval of the ACC.

Hope this helps.

JenniferZ1 (Florida)
Posts: 27

Posted:

Thank you, that is helpful information. John, we don't have a no reply = proceed clause in our covenants; it is actually the opposite, no reply = considered disapproved. I'm sorry that came across as unclear. In our CC&Rs and bylaws, as well as FL Statute, nothing is defined as to what the Board can approve an an exception/variance to the CC&Rs. For example, I know we have the power to waive the interest and fines that are laid out in our CC&Rs, I just wasn't sure if we had the power to grant exceptions in other CC&R controlled scenarios as well, such as this 12 month rule.

Does anyone have experience with this who could help clarify for me? Certainly, we aren't going to grant exceptions/variances at will, but it seems this situation is one that should warrant some serious consideration as to what is reasonable and fair vs. following the CC&Rs to the letter because we are "legally bound" to do so.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Jennifer,

You could argue that the homeowner "commenced" work on the project when he/she applied to city for a permit. Yes, it's splitting hairs but obtaining permits IS a positive action and the homeowner is technically at the city's whim for issuing the permit. The work should've be started earlier, I'll agree with that.

Regarding the approval process of your ARC requests, there needs to be action taken on a person's request - a "yes" or "no" - with "no answer" favoring the property owner. Otherwise, lazy "armchair quarterback" board members have no incentive to serve their constituents or acknowledge them for following the rules of their community.

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