Variance to CCR's...???

Hi All,

I am new here and have this as a question. After reading many posts advising one to read the governing documents, I have gone through my CC&R's with a fine tooth comb. We are a quasi gated community in California that is 30 years old.

In reading my CC&R's, I discovered at the very end of them that there is a CC&R that allows the board to grant variances to the CC&R's.

My question is - how can this be legal?

I have learned a lot from all the various posts describing problems, issues and advice. One of the things I have learned is that CC&R's are deed restrictions to properties within the community and that the CC&R's are also contracts between each owner and every other owner. So how in the world can a board or even the CC&R's be able to issue a variance to any homeowner to violate any of the items contained in the CC&R's. Per what I have read here (and now understand) we can't waive these deed restrictions without a full membership vote (or going to court etc).

Have any of you folks encountered such a thing? I do not know if this was legal at the time the community was founded and HOA incorporated 30 years ago. Maybe the laws have changed and our document did not stay in sync (might be a plausible reason).

We have a board member who has had chickens for some number of years. (This person lives on a cul-de-sac in a remote corner of the sub-division). The CC&R's expressly prohibit farm animals (including poultry). The subject was brought up at the Sept 2012 open Board meeting at which time the board member in question raised the issue of seeking a variance.

The rest of the board denied the request at that time and gave her 15 days to get rid of them. As of today, the chickens are still there. At the last board meeting, a member asked why the birds were still there and and why the board member is still on the board (raised ethics question to the board as a whole).

Any suggestions or advice on what we should do regarding the CC&R that gives the ability to give a variance to other CC&R's?

Thanks in advance for any input,
FredO

Variances are quite common and acceptable, but they should not be given on a whim. One I recall was we had a limit on fence height of 4ft. A couple with a handicapped child asked for as variance to 6ft for the safety of their child. We granted it with the following conditions:

1. They submit plans to ACC.

2. They notify abutters they are seeking a variance and why.

3. If and when the child no longer lived there, they must remove the fence and or modify it to a 4ft height acceptable to the ACC.

4. If and when the couple sold the home, they must remove the fence and or modify it to the 4ft height acceptable to the ACC.

You make a case for the chickens being out of sight and out of mind but the person has been clearly violating the Covenants for some years. Now they are requesting a variance. As they paid no attention to the covenants from the get go I would be hesitant to grant a variance. Like do it and ask for permission later.

MelissaP1,

I think you may have mis-construed what I wrote.

Now we do have ACC (Arch. Control Committee instead of the more common ARC) "guidelines" that in themselves state that they are merely guidelines and an owner can make a case for a variance to those. Hence the review by the ACC. They are supposed to review applications to assure that whatever work or planned work will be suitable to the intent and look & feel of the sub-division.

What I am talking about is the "actual" CC&R's which state the hard and fast rules such as parking restrictions, and the various things that could be a nuisance or impact neighborhood property values. Things that most HOA's will issue non-compliance letters and/or fines for. Side note - about the only thing that the ACC indicates as non-compliance is in the case someone does work without authorization or plans approval. In some cases the work itself violates the ACC guidelines (like a wrong color painted on a house) or a simple error made by the contractor or owner.

The majority of non-compliance issues we see are violations of the CC&R's such as vehicle parking (the whole gambit of these from RV's, cargo trailers and commercial vehicles parked in driveways or the street overnight) or not maintaining your yard (weeds for example).

It is just that from my understanding, we can issue variances to the ACC guidelines if someone wants something similar but not the exact example shown in our ACC guidelines book (Like a fence material from Redwood to Traxx or a fence design like using 6x6 posts instead of 4x4 posts). The CC&R's for example, indicate how many people on the Board of Directors and what types of committees and how many people on these committees. I don't think we can (the BoD) issue a variance to these sorts of things without taking it to a vote of the full membership. Same thing here, the person with the Chickens is asking for a variance to an actual CC&R which as I understand it, requires a vote of the full membership to agree to the change in a deed restriction for any individual parcel.

It is my understanding that maybe the section of the CC&R's which indicate that a variance can be issued to another CC&R might not be legal in an administrative legal sense (no one going to jail over it) since it is a method of changing Deed restrictions without having them be recorded to the deed. I think that is more to the point of asking how or why issuing a variance to the CC&R might not be legal in the long run.
I mean, I think that the CC&R's are actually recorded with the county clerks office and are attached to the deeds for all the owner parcels (and common area parcels). So, if the board is allowed to change these conditions on a whim (such as through a variance) then do these variances need to be recorded for that particular parcel?? In this case, it is a very individual thing, this is for one owner only. Wouldn't the proper thing to do be to hold a full membership wide vote to remove the "condition" from all owners (essentially requiring a re-recording of the "amended" CC&R's with the clerk?).

I hope I have given enough info to relate the situation clearly

I appreciate all the feedback and look forward to everyone's take on the situation.

Thanks,

FredO

Fred

I think it is wise for a BOD to have the ability to approve variances though it could get to the point that all requests are granted via variance, which is a valid concern. I would rather allow variances then to remove and/or overly try and clarify rules as that road is fraught with more dangers, what ifs, etc. then asllowing variances.

In the case of the chickens. Most Covenants say no "farm" animals which covers chickens. Problem is if one removes the farm animal restrictions then expect to see cows hanging over your fence or if one tries to clarify it, where does one stop listing the type animals? Like no cows but all of a sudden it is a steer looking over at you, which is not a cow...I think...LOL

There have been many discussions along this same line as to when is a motor vehicle a commercial vehicle which some HOA's have restrictions on. The vehicles might well be identical but one has a business name on it, another does not. One has ladders hanging of it, the other does not. In SC you can park in places reserved for commercial vehicles if you have business license tags which some might claim make it a commercial vehicle based on that alone. Now we have so many combinations it would be near impossible to list all and simply banning all models of a specific vehicle would not be correct but it would also be stupid.

The bottom line question is: Should exceptions to rules be allowed?