Newbie with question about consistent enforcement

Hi, me again.

After doing a bunch more reading on this site and elsewhere, it sounds like the documentation I have (letters to the other homeowner) are the key here...otherwise it's just a he-said-she-said hissy fit, whining about how the rules shouldn't apply to me...

The issue here is that the design guidelines aren't specific, and the committee/board have dealt out contradictory interpretations of them, at essentially the same time....the letter approving the other structure was dated Feb 17th, and my denial Feb 19th.

Just hoping someone with experience can tell me if I'm crazy! I am not one to try to whine and cry to try and get around the rules...I just think I'm getting screwed here.

No, they approved the structure contingent on many many items.


Do you currently own the home or is this contingent on the purchase?


You are incorrect. You are not maintaining the structure that was previously approved, you are making changes to it. Therefore, you need approval for the exterior change. By making the changes, you reopened the issue and the ARC can now force you to comply with the covenants as written.

I know that you are seeing the issue one way and the ARC is seeing it another. My suggestion, pick your battles. It is highly likely that the Association didn't have the authority to approve the steel posts in the first place (as nobody, including the Board, can waive a covenant unless that document grants such authority).


I agree, rules are to be enforced uniformly.
Based on what you provided, the Association was in error when they granted the initial variance.

Are there other properties that have steel posts like those on your proposed purchase? If there are, you have a fair argument for having the Association approve yours. However, if there are not, and yours is the only property with the steel posts, the Association is simply correcting it's mistake in the past.

Had you decided not to change the structure, the Association would have been stuck with it's earlier approval.

Carol,

This is the way I understand it.

1) Seller listed home

2) Buyer (parents) made an offer

3) In creating the Disclosure statement, the Association discovered the unapproved structure (metal roof and metal supports for roof)

4) Seller convinced Association and received after the fact approval for the structure

5) unclear Buyer closed on home or is in process of closing

6) Buyers Son (Daniel) submitted paperwork to Association to change the recently approved structure with a different roof (change from metal to wood).

7) Association said no but said they would approve if a plan was submitted that addressed the metal supports (which are not in compliance)

8) Buyers Son is appealing the decision to the BOD claiming (if I understand correctly) selective enforcement as they just approved (after the fact) the existing structure 2 days earlier.

Hi, yes I guess I need to clarify!

Yes, I'm talking about two different properties. The property my parents have bought (sale is closed) has the existing steel post + steel roof pergola. It was approved contingent on all those things, and I have the letter stating those contingencies, and the email to the seller stating that all violations have not been addressed...seeing these communications was a condition for closing. Nobody is suggesting changing anything at my parents' house.

The plan for my structure was originally submitted prior to the other house going up for sale. I sent my plan in, they asked for some clarification on a few things, I provided it, and was waiting on a decision. During that process, I received, through my parents' realtor, the letter that approved the structure on the other property contingent on ____. Those contingencies were not serious issues and were easily rectified. As the excerpt in the first post says, they were explicitly granted a variance for the steel roof.

So, when I got my denial letter saying it was denied because the posts need to have stucco, I thought "wait a second...." The design guidelines are not specific, so the committee and the board have to interpret what the rules mean with respect to structures like this. The problem I have is that on the issue of steel posts, they had no comment at the other property and have made it a black and white issue with mine. They have no issue with the wooden roof in my plan...it never was a problem.

So what we have is a letter approving a structure with steel posts (no specific discussion of this aspect) sent to the seller on Feb 17th. The letter denying my proposed plan was sent on Feb 19th, and specifies steel posts as the reason for the denial. If that isn't selective enforcement I don't know what is! The fact that the seller was a board member certainly doesn't look good either.

I realize granting variances is a slippery slope. The simple solution is that the design guidelines be amended with some specific language...the board has the authority under the CCRs to do that. That still leaves the issue of what to do with me. It is certainly unethical to treat the board member's structure differently than mine.

Yes, there is a clause in the CCRs saying that prior approval doesn't guarantee future approval. I expect that will be the board's answer. I went to the board's meeting on this past thursday, but was told that any discussion and decisions would be made in executive session and I could not be present. The CCRs give them authority to hold executive session to discuss issues of compliance.

I certainly don't want to end up in court, and I'm not sure this hill is even worth dying on. Typically, proof of selective enforcement is difficult to measure, but given the coincedental access that I have to these other letters, I think I can clearly show it here.

Daniel,

Even though your parents' house is now a done deal, may I suggest that you record the variance letter(s) with the county recorder. This will ensure that long after this current board is gone that there will be no dispute that the board approved the structure. You do not want to be looking through shoe boxes for that document ten years from now when a new board demands removal of the structure.

With regard to your home, one thing jumped out at me: "I have an appeal written to the board and am waiting to hear their decision, which will be made in an executive session." This is a rather patent violation of Arizona's open meeting law, ARS 33-1804. The law allows executive sessions for only five specific topics and an appeal of a denial for a variance is not one of those topics.

As someone noted above, the only avenue open when the board behaves badly is through the courts. Sometimes you have few choices and have to go that way. Other times grabbing your ankles may be a better choice. It all gets down to how much time and money are you willing to put into a fight with this board? You can build the structure the way the board wants it and begin using it as soon as the construction is done or you can spend the next two to six years in court, where it is not altogether clear that you would prevail.

Please understand that I am not endorsing the board's behavior, but if it was me I think I would decide that this is not a battle worth fighting.

I'm glad you replied, Larry, and also backed up my question about why this appeal was being done in ES. Makes me wonder if this board is ignorant or is going behind owners' back on purpose.

I also agree with Larry, Daniel, don't spend time & $$. Comply & get your shelter before it gets toooooo hot there : )

Re-read my earlier post - other unit owners will be reluctant to join you in a fight against the Board because it's not their problem and they probably could care less - so what are you left with - continue to point out to them the error of their ways hoping for a turnaround or possibly start legal action.

My wife and I have lived in our complex for 16 years - have seen it all - I have no feel for how things are where you live, I can only share our experience - the pros still outweigh the cons for us but we're prepared to move if necessary.

Good Luck !!!