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Architectural Guidelines

Started by CatherineS3 • 10 replies • 1864 views

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CatherineS3 (North Carolina)
Posts: 31
Posted:
A builder has purchased over 30 lots in our community and has built and sold 10 houses so far. He has submitted new plans for 2 lots and requested a variance which was reviewed by our Architectural Review Committee and subsequently denied. Our Covenants state that "refusal of approval of plans, location or specifications may be based by the Master Association upon any ground, including purely aesthetic conditions, which in the sole and uncontrolled discretion of the Master Association shall seem sufficient". The builder is threatening to take legal action because of the variance denial. Variances in our community have been granted in the past and there are some property owners that say we set the precedent and should allow this request.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By CatherineS3 on 08/13/2015 4:51 PM
A builder has purchased over 30 lots in our community and has built and sold 10 houses so far. He has submitted new plans for 2 lots and requested a variance which was reviewed by our Architectural Review Committee and subsequently denied. Our Covenants state that "refusal of approval of plans, location or specifications may be based by the Master Association upon any ground, including purely aesthetic conditions, which in the sole and uncontrolled discretion of the Master Association shall seem sufficient". The builder is threatening to take legal action because of the variance denial. Variances in our community have been granted in the past and there are some property owners that say we set the precedent and should allow this request.

And your question is????????
CatherineS3 (North Carolina)
Posts: 31
Posted:
My question is if our convenants give the Master Association the right of refusal of the plans does the builder have grounds for legal action based on the Master Association's previous approval of other variance request(s).
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By CatherineS3 on 08/13/2015 5:54 PM
My question is if our convenants give the Master Association the right of refusal of the plans does the builder have grounds for legal action based on the Master Association's previous approval of other variance request(s).

Maybe. Discretion is seldom absolute and abuse of discretion is recognized as grounds for relief. It is possible that a court may see your association's actions as arbitrary and capricious. It is also possible that the court could uphold the association's actions if the association presented evidence that the variances previously granted created problems that they wished to not repeat.
TimB4 (Tennessee)
Posts: 21,061
Posted:
It would depend if the requested variance was the same as previously approved variances as to having the argument stand up in court.

It also depends if the builder really wants to take the Association to court (which costs time, money and can depress sales in the development until the legal action is resolved) or if they are simply bluffing.

CatherineS3 (North Carolina)
Posts: 31
Posted:
Thank you both. Your views on the issue are very helpful.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CatherineS3 on 08/13/2015 4:51 PM
Our Covenants state that "refusal of approval of plans, location or specifications may be based by the Master Association upon any ground, including purely aesthetic conditions, which in the sole and uncontrolled discretion of the Master Association shall seem sufficient".

"Sole discretion" language is a problem for you. "Purely aesthetic conditions" is a problem for you. A judge is not going to look favorably at these words. In the judge's eyes, "aesthetic" means "arbitrary." The only hope of stopping the builder is to have a rational set of rules that have some practical significance for your association.
Sikubali jukumu. Read all posts at your own risk.
LarryB13 (Arizona)
Posts: 4,099
Posted:
I have a vague recollection of a thread on this forum a few months ago where there was a discussion of two different HOA's that were sued by members after turning down requests for waivers.

In one case, the HOA could cite no reasons for their decision and judgment was against them. In the other case, the HOA admitted that they had granted a waiver previously and felt the resulting home was out of character when compared to the rest of the neighbors; the court was satisfied that the HOA's action was intended to prevent a repeat of what had been a mistake.

Does anyone else recall this thread?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
De Gustibus Non Est Disputandum but a judge will.
BobD4 (up north)
Posts: 1,002
Posted:
Quote:
Posted By LarryB13 I have a vague recollection of a thread . . . Does anyone else recall this thread?

Could it be the "Selective Enforcement" topic of Aug 1st 2015

http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/199606/view/topic/Default.aspx

which led to an article dug up by NPS Penn

“A Board’s Primer on Selective Enforcement” by attorney Rebecca Drube wncwlaw.com
Weissman Nowack Curry & Wilco (Atlanta GA)
https://www.caionline.org/govt/news/Political%20HeadsUp%20Public%20Document%20Library/Selective%20Enforcement.pdf which cites it posted on Feb 1 2011

which cites Palmetto Dunes v Brown ?
BobD4 (up north)
Posts: 1,002
Posted:
Palmetto Dunes v Brown (1985) S Carolina Ct of Appeals
http://www.leagle.com/decision/1985288287SC1_1288/PALMETTO%20DUNES%20RESORT%20v.%20BROWN

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