architectural approvals

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CfD (Virginia)
Posts: 265

Posted:

Is an architectural review committee compelled to approve an application if an application conforms exactly with existing architectural guidelines.

My thinking is it does not, but I'd like your opinion please.

I also would like to know what problems you think can arise when a board and architectural review committee adamantly believe they can conduct all of their reviews and approvals in private? Can this cost the association legal bills for selective enforcement? Most of you already know my concerns with the ASC telling us they can grant variances at will and without the knowledge of the membership. I'd like to site some examples when explaining the dangers of this secrecy at our upcoming annual meeting, provided I'm given the opportunity.

Thank you for your responses.

WalterM3 (Georgia)
Posts: 442

Posted:

I don’t have an answer for you but I will add that our ASC decided to go all authoritarian on people to the degree of not re-approving schemes that were previously approved, perhaps forcing people who like their scheme and may have had it for years to repaint with new colors . This to me is totally creepy and just mean. They also changed the Architectural Compendium from: “Previously approved schemes will generally be approved…” to “Schemes will be approved if they conform to the new pallet.”

Walt

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

In my opinion, an application should be done as follows:

1) Is the application complete?
yes - go to step 2
no - disapprove but allow to be resubmitted when complete

2) Does the request violate any covenants?
yes - disapprove
no - go to step 3

3) Does the request violate any guidelines?
yes - disapprove
no - go to step 4

4) Is there past precedence?
yes - approve
no - go to step 5

5) Does the request keep the style of the development, if any (for example: Colonial, art deco, etc.)?
yes - approve
no - go to step 6

6) Will the request cause major issues if approved (i.e. does it matter if the fence has 3 inch wide pickets vs. 2 inch wide pickets)?
yes - disapprove
no - approve

In my opinion, ties go to the homeowner.

Quote:

Posted By CfD on 01/15/2015 5:55 AM

I also would like to know what problems you think can arise when a board and architectural review committee adamantly believe they can conduct all of their reviews and approvals in private?

Since VA law requires open meetings, the issues is compliance with the law.
Point out the law and, if needed, push for an opinion from the Association attorney.

If they still want to conduct business in closed meetings or outside of meetings, gather support and replace them.

Quote:

Posted By CfD on 01/15/2015 5:55 AM

Can this cost the association legal bills for selective enforcement?

No. This would not be a selective enforcement issue.
It could cost the Association legal bills, and perhaps monetary penalties from the CIC Board (VA common interest community board) for violation of VA law - i.e. the open meeting act.

Selective enforcement is enforcing a covenant on one or more members but not others.

Quote:

Posted By CfD on 01/15/2015 5:55 AM

Most of you already know my concerns with the ASC telling us they can grant variances at will and without the knowledge of the membership. I'd like to site some examples when explaining the dangers of this secrecy at our upcoming annual meeting, provided I'm given the opportunity.

If the variance violates a covenant, the Association will be in a legal fight to enforce said covenant in the future and will likely have to pay damages to the member to remedy the issue.

If the ACC isn't authorized to grant variances by the governing documents, then the committee execeeded thier authority (see Ultra vires and Sarnir R. Farran, et al. v. Olde Belhaven Towne Owners Association (page 2, 2nd paragraph, last sentence)

It sets precedence and failure to allow the same variance to others can lead to legal action by the member.

JerryD5 (Colorado)
Posts: 218

Posted:

We have a 3-person ARC that works for the board. For the most part, we haven't been involved in their decision. To their credit, they have been fairly judicious in their decision making. We had 1 committee member (since removed and replaced) that questioned each and every submission and made the process very cumbersome. In one instance, a homeowner wanted to put in a sunken pation with fire pit. She kept insisting that the homeowner deal about potential water run off issues. She demanded that the homeowner submit an environmental study to ensure the water runoff would not damage HOA common area. In reality, any runoff would go to a drain at the lowest part of the patio and seep into the ground through a 10-foot deep drain. The board intervened and approved the project as submitted (pissed of the dissenting committee member).

Flash forward a few years and this same committee submitted her own request for a structure. The 2 remaining committee members disapproved the project (with sound and well-thought out reasoning; biggest being that it violated a 3-foot right of way the city has for utilities). She was furious and appealed the matter to the board (which her husband sat on). Looking at our by-laws, they had a right to appeal but we did not have to grant them an actual face-to-face meeting. The 4 remaining board members read their appeal and ultimately denied it (we repeated the same reasons as given by the ARC). She would not let the issue go. For 3-4 months, she insisted we hear their re-appeal. During that time, she publicly called us elitist snobs and nazis. We promptly removed her from the committee (against our by-laws to publicly disparage board members, committee members, other homeowners, the MC or their agents). Committee members serve at the pleasure of the board and can be removed for or without cause in our HOA.

The bottom line, our ARC has done a pretty good job. They have not shown favoritism over any other homeowners. We do have a recent issue about a house color that we are still investigating (stated in a previous thread).

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JerryD5 on 01/15/2015 9:28 AM
She was furious and appealed the matter to the board (which her husband sat on). Looking at our by-laws, they had a right to appeal but we did not have to grant them an actual face-to-face meeting. The 4 remaining board members read their appeal and ultimately denied it (we repeated the same reasons as given by the ARC). She would not let the issue go. For 3-4 months, she insisted we hear their re-appeal. During that time, she publicly called us elitist snobs and nazis. We promptly removed her from the committee (against our by-laws to publicly disparage board members, committee members, other homeowners, the MC or their agents). Committee members serve at the pleasure of the board and can be removed for or without cause in our HOA.

Hi Jerry

Interested in hearing how the the husband board member and the rest of the board dealt with this and other issues while in the heat of the conflict with the wife.

Sikubali jukumu. Read all posts at your own risk.

JerryD5 (Colorado)
Posts: 218

Posted:

NPS, it turned out to be a crazy few months. First of all, when they sent the original request in, she demanded it approved in 1 day. When the committee balked at the request, she had her husband intervene (or attempt to) to get the committee to act faster. The MC had the good sense to tell them that to allow the system to work. When it was disapproved and they were offered an appeal, she is the one that demanded the face-to-face meeting. Knowing how voilitile she can be (she has a well-known track record in the community for her combatitive behavior), we declined the face-to-face meeting and instructed them to submit their appeal in writing (our by-laws state that the board has wide lattitude to conduct appeals). The husband took a passive response and allowed the board to do it's job. It was very apparent that she is activist in the family and relishes confrontation. The 4 other board members agreed the husband would not be allowed to be part of the discussion of their appeal. We met and it only took a few minutes to discuss and deny their appeal. We, through the MC, sent them our response to their appeal. She immediately demanded reconsideration because of a certain word choice. I drafted the initial response and used the word "feel" which she objected to. For example, "the board feels that it is not prudent for this project because of....." In retrospect I probably could have used a better word choice. However, she demanded (in 2 or 3 subsequent emails) us to reconsider. That is when it came out that she publicly called us elitist snobs and nazis. Based on that, the 4 board members (again, not including her husband) had an emaill discussion to remove her from her committee position. At that time, her husband finally spoke up about being excluded from any of the discussions. In my reply to him, I said it was a conflict of interest for him to be involved in any discussion concerning about him, his wife, or their property even if he didn't vote. I went on to explain his mere appearance at any meetings could potentially influence the other members and their vote. He did agree with that premise and never brought it up again.

If I had to guess, the wife truly enjoys her bully tactics and does not like to be told no. If you do not agree with her, she will use mulitple venues (mainly local internet boards and social media) to call the offending member out. When her and her husband sued the HOA a year later (they lost), she wanted to keep fighting even though they already had to pay $1000 in lawyer fees to the HOA. I think her husband (who is no longer on the board) finally told her to stop. Over the last few months, we haven't heard anything from her (or her husband).

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JerryD5 on 01/15/2015 3:30 PM
the 4 board members (again, not including her husband) had an emaill discussion to remove her from her committee position. At that time, her husband finally spoke up about being excluded from any of the discussions. In my reply to him, I said it was a conflict of interest for him to be involved in any discussion concerning about him, his wife, or their property even if he didn't vote. I went on to explain his mere appearance at any meetings could potentially influence the other members and their vote. He did agree with that premise and never brought it up again.

Thanks Jerry

In hindsight, would you have dealt with this aspect of the exchange with the husband any differently?

Sikubali jukumu. Read all posts at your own risk.

JerryD5 (Colorado)
Posts: 218

Posted:

NPS, I would not have changed anything in relation to the husband and his position on the board. I made the point if I was behind my association dues and the board was required to make a decision on whether or not to send it to collections (or place a lien), I would not expected to be allowed to be at any meeting discussing that. As I stated previously to him, his mere appearance could potentially influence a vote (or inhibit the discussions). Ultimately, he agreed with my explanation. If only his wife was so understanding.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

People.

No matter who is sleeping with or screwing, let us get back to OP's question:

Is an architectural review committee compelled to approve an application if an application conforms exactly with existing architectural guidelines?

KerryL1 (California)
Posts: 14,550

Posted:

OK, JohnC, I'll bite. In CA, the statues involved HOAs wiring to owners once a ear (with budget letter) saying what the guidelines are. In CA, applicants have recourse to go to the board if the ARC turns them down. In my HOA, if the ARC turned down a perfect app., our board would overturn it.

But, I don't know what recorus your appellant has in VA., CfD.

I believe you've asked about the secret meetings at least 2-4 times previously. I think some of us answered to get rid of the Board that permits this secrecy, which seems to be against VA statutes. I'm not sure what else you think we can advise.

At your upcoming member's meetings, just cite the VA codes that Tim of VA keeps telling you about!!

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kerry

No reason to bite me....unless we both like it...LOL

I admit I do not recall paranoia (secret meetings, talk about me behind my back, etc.) from the OP but the question is valid. If one meets all ACC requirements then why turn them down?

I do agree one can appeal any committee decision to the BOD as the BOD, not any committee, is the final decision maker.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JohnC46 on 01/15/2015 8:41 PM

If one meets all ACC requirements then why turn them down?

Well, I know of one Association where the ACC approved a yellow door because the request met all the requirements.

That Board had to then go back and bring about legal action to force a change based on the yellow door not being harmonious to the community.

NpS (Pennsylvania)
Posts: 4,216

Posted:

I am surprised at how many ACC issues raised here involve color. My guess is about half. Does that sound right to you?

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

In my last HOA the #1 issue/time consumer for the ACC was fences. Basically no fence could be forward of the back edge of the house unless to adjoin a neighbors fence. No fence could be over 4 ft tall.

CfD (Virginia)
Posts: 265

Posted:

I can see no ordinary reason to turn anyone down John. In this we agree. But I'm hearing of circumstances (at my in laws HOA about an hour away) where people are arguing in an ASC meeting that if they approve the addition to an adjacent house the "view" for a neighboring resident of a scenic lake will be diminished. I thought it was interesting. Addition meets all guidelines, but their was support for the member whose view would apparently go away. The application was deferred until the next ASC meeting with approval "pending".

In our HOA I'm presently on the grounds committee, where only the chairman was appointed. Anyone else can be on the committee if they want to be and show up to the meetings. Last May we received through email an application to improve a homeowner's lot that was submitted to the architectural committee, again all through email. The ASC chairman forwarded it to the grounds chairman who invited the input of the grounds committee through email.

The application looked very nice, but it also included removing trees in the common area behind the homeowner's home he didn't like and replacing them with trees he did like. I also liked the new trees, and the fact that he was paying to have everything done.

The problem for me was that in our guidelines there is a clause that specifically states the planting of any trees in the common area "must be approved by the grounds committee". I would assume removing any trees in the common area would also need to be approved by the grounds committee. Through email I brought up these points, and asked the chairman to call for a properly noticed meeting to discuss this situation since the membership pays dues, and in our dues money is specifically allocated to the grounds committee to plant additional trees in the common area. The application also said the homeowner wanted to plant trees during the month of June, which I said was the worst time to do it, especially in a non irrigated field. Another grounds committee member emailed us all and agreed specifically with me. Other than saying the application looked nice no one else said a word.

The grounds committee chairman never responded to us through email, went to the next board meeting (the only one in 2014 I could not attend), commented on the application (I believe he was drawn into executive session with the board to discuss it, but I'm not 100% sure) and then this application was approved. Other than saying in the minutes the application was approved "with comment from the grounds committee chairman", there is no record of the concern of the grounds committee members anywhere. The grounds committee chairman's comments have never been brought to light.

This application was our presidents!

At a special homeowners meeting the following month called to discuss changes to the architectural guidelines, a husband and wife were told they would have to remove a few trees and shrubs planted within the five foot boundary just outside of their lot (this is permitted through our guidelines). They were told that even though their trees and shrubs met all guidelines, they failed to submit an application for them as it says to do in our governing docs. They were told, during the meeting, they had no due process, and advised to remove the trees and shrubs, submit the paperwork, and then replant.

This was the very same guideline in our governing docs the president, in my opinion, violated by proceeding with common area planting (and the removal of trees) without official, documented approval from the grounds committee.

The homeowners have no idea this kind of thing happens. What would you do if this was going on in your HOA?

CfD (Virginia)
Posts: 265

Posted:

Kerry,

At many, many board meetings I've done just what you suggest. I've pointed out the clauses in our governing documents and state statutes repeatedly, even with our property manager sitting right beside the president. Both could care less. Usually when I do this my comments and concerns are purposely ignored and never brought to light in the minutes. Since the board meetings are rarely attended by any more than 2 or 3 members, no one really knows what is going on, and that is the danger in my view.

Last fall, not far from our association, members of a condo association sued their board for lack of transparency and won a $50,000 judgement to cover the legal fees associated with going to court. You would think that would deter our president, but it does not.

Apathy is very prolific in our association. I sat beside a man at our attempt at an annual meeting last night who said he lived in the neighborhood almost 8 years and this was the first meeting he ever attended. We didn't come close to achieving a quorum.

Members overall don't seem to know, want to know, or care what the board does. As some have stated here associations get the memberships they deserve. But I don't believe a single member's rights should be crapped on simply because no one else seems to care.

AmandaR2 (South Carolina)
Posts: 566

Posted:

"I don't believe a single member's rights should be crapped on simply because no one else seems to care"

Haven't read this thread in it's entirety, so I'm taking it out of context, but I agree with your last sentence. Sometimes this happens when apathy is prevalent and it's unfair.

KerryL1 (California)
Posts: 14,550

Posted:

IMO, if "views protection" isn't in the the governing documents, then the ARC has no right to turn down the application. Members of that HOA can change their documents to protect views.

If your own docs do not state that removal of common area property--trees, poolside furniture, signage, etc.--is forbidden, then I'd assume the opposite of you CfD. anyone can come along and remove these items. Our docs forbid removal of any common area items and approval by out PM to "donate" (read, get rid of) plants to our planters.

In any case, your committee should have voted on the president's application. One or two emails IS NOT a vote

Given all of your troubles with your board and committee(s), CfD, your options are:

1. Gather Owner support and work together to vote out this rogue board. Takes a lot of work, but is inexpensive.

2. Move

3. See what legal recourse you have --and how much it would cost you to pursue it.

Btw, and I think I've mentioned this to you previously, CfD, read your contract with your MC. If is says, as does ours, that the MC/PM must follow the laws of your state and follow your governing docs, send a registered letter to the MC telling them that their PM fails to uphold VA law, etc. Provide concrete examples.

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

Posted By KerryL1 on 01/16/2015 11:05 AM
I

If your own docs do not state that removal of common area property--trees, poolside furniture, signage, etc.--is forbidden, then I'd assume the opposite of you CfD. anyone can come along and remove these items. Our docs forbid removal of any common area items and approval by out PM to "donate" (read, get rid of) plants to our planters.

The doc's may not reference common area property because there is no need. The common areas could be assumed to be owned by another entity, hence common sense and common law does not allow one to alter these.

CfD (Virginia)
Posts: 265

Posted:

Kerry,

Our PM rep is the owner of the MC. Through my research I've found he was fired from other management companies before starting his own company. He was hired by our developer. I've tried for years to point out his serious incompetence to the board members when I was on the board, and more recently. Sending a registered letter would be official notice though. I like that idea.

Our president has a serious stick up his caboose for me because I resigned from the board shortly after he took over, another story some of you may recall. I could walk into a board meeting and have a cure for cancer in my hand and he would immediately start arguing against using it.

Sorry, but we disagree on the topic of needed language in our docs preventing the removal of trees in the common area.

MichaelB36 (Georgia)
Posts: 2

Posted:

Quote:

Posted By CfD on 01/15/2015 5:55 AM
Is an architectural review committee compelled to approve an application if an application conforms exactly with existing architectural guidelines.

My thinking is it does not, but I'd like your opinion please.

I also would like to know what problems you think can arise when a board and architectural review committee adamantly believe they can conduct all of their reviews and approvals in private? Can this cost the association legal bills for selective enforcement? Most of you already know my concerns with the ASC telling us they can grant variances at will and without the knowledge of the membership. I'd like to site some examples when explaining the dangers of this secrecy at our upcoming annual meeting, provided I'm given the opportunity.

Thank you for your responses.

I'm serve as the Arch. Admin for a pretty large community. This question isn't really framed correctly, in my opinion. But I'll try to answer.

Applications that violate architectural guidelines are simply denied more frequently than applications which work within guidelines. On the other hand, perfectly conforming applications are sometimes denied for reasons such as detrimental impact to a neighbor's view, aesthetically incompatible with the community, inappropriate material. But all this shows us is the reason to have a review committee instead of a guy in an office crunching square footages and heights and rubber stamping plans.

Is my review committee more compelled to approve conforming plans? Not compelled. Conforming plans simply have the advantage of going directly into "aesthetic" review. "Does this look good and in keeping with our vernacular? Approved as submitted."

rather than:
"There's no need to encroach the setback if you position the new home forward on the lot and tilted northeast. This would also save the large live oak in the rear corner of the property. Denied as submitted. Please resubmit."

Just one mans opinion.

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