ARC approval and denial

MargotB: "... clause that states that the HOA Board and ARC have discretionary power to deny any homeowner's request, based solely on esthetics."

For posters to respond intelligently, could you post the clause from the Bylaws?

Furthermore, how is consistency kept througout the neighborhood. HOA's are big on being consistentcy. It sets different dynamics up and chaos, everytime the Board and ARC change hands.

I'd be interested in seeing this: Article VII of the Declaration

Because we, too, have the ability in our CC&Rs to approve things like, say, inground pools, but the CC&Rs also say that the approval may also be arbitrarily withheld. Meaning, if we want to approve Mr. Jones' pool, we can. But if we don't want to approve Mr. Smith's pool, we don't have to and don't have to really even give a reason, aesthetic or otherwise.

The whole problem with that, though, is that when we get taken to court over it, a judge could very well say that by approving Mr. Jones' pool, we would have to approve Mr. Smith's, which is exactly like it, since we have already shown that we will approve pools like that, regardless of the wording about "arbitrarily withheld."

Our attorney said that might have meant something in the early stages of a development when the developer was approving things, but that judges really don't have much patience with HOAs who engage in selective or inconsistent enforcement. They will support CC&Rs if you show you enforce consistently, but they could also find against you if the judge feels that the inconsistency rises to the selective enforcement level. Judges don't like selective enforcement.

Just sayin.....

§ 47C-2-111. Alterations of units.
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(1) May make any improvements or alterations to his unit that do not impair
the structural integrity or mechanical systems or lessen the support of
any portion of the condominium;
(2) May not change the appearance of the common elements or the exterior
appearance of a unit or any other portion of the condominium without
permission of the association; and
(3) May, after acquiring an adjoining unit, remove or alter any intervening
partition or create apertures therein, even if the partition is a common
element, if those acts do not impair the structural integrity or
mechanical systems or lessen the support of any portion of the
condominium. Removal of partitions or creation of apertures under this
paragraph is not an alteration of boundaries. (1985 (Reg. Sess., 1986), c.
877, s. 1.)

Hi Margot:

Our HOA just approved a rubber roofing material - for one house only (check out Euroslate on the web for more info on the roof material). If the ARC decides that they really like the look, then it will be widely approved, but if not, this will be the only home allowed for this material. It's important that our ARC has the right to not be bound by prior decisions in situations like this. We also approved a solar installation on this house (the south side of the house faces a gully and is fairly distant from viewing), but would not approve such an installation facing a street, for aesthetic reasons (but we did approve an installation in a back yard, to be placed on a pergola, when the south side faced lots and a street).

Sometimes it's important to have the flexibility, but it should not be abused.

J. Patrick Moore, CMCA

JM, I am suprised your state does not have statutes allowing more homeowner control on solar installations. In Colorado, since 1984, an owner can place solar on the south side of the roof when necessary for efficient collection. The ARC can only require changes which are minor in cost - changes to such things as bracing to improve the appearance.

Margot:

The purpose of writing the CCR's in a gray way is to allow each board or ARC Committee the grace to consider ARC's on a case by case review. As an example: if your lot is not as wide as the next (especially true for NC lots) what may look good on your neighbors back yard (perhaps a 10 x 10 shed) might fit in his yard but yours can take 12 x 12, if your governing documents do not prohibit a size restriction of course.

I am also sure that what you are feeling about the board is probably not so, if you were to sit in on their meeting, I am sure you will see that they really do consider the guidelines, CCR's and the entire ARC package that was submitted. Most CCR's in NC allow for either 30, 45 or I have seen 60 day review. It does not start until receipt in the MC's office, and if you do not include all of the necessary information, the MC will send you a "Need More Info" letter telling you what is missing along with the review period being suspended until the information is received. The ARC form is a 1 dimension piece of paper, you are trying to communicate to the board/ARC a 3 dimension project; it is very important to include a plot survey, picture, dimensions, materials, location, permits is applicable etc., so the board and ARC can make an informed decision on your project.

If your documents read above ground pools are not permitted, they could not allow one to stand. They would have to uphold the CCR's and enforce them.

If you could be more specific in what you feel they approved and arbitrary disapproved based on aesthetics perhaps this may help with a better answer.

First off, this is my fourth HOA, but the former three were in another state. I am very familiar with how they operate, but have never seen one like this before. I've gone to many meetings, but they do everything to undermine our attendance and input at meetings. I could go on and on, but I am not the only one feeling this way. When meetings were during the week, many came; so they changed them to 8am on Saturday mornings and get a hanful. You can only speak if addressed or have submitted a "speech" of sorts, so they can prepare ahead of time a response. Anyway, before buying...I asked the developer if a 'sportscourt' would be allowed in this community, seeing them in many around here. He got a detailed description, and asked their HOA consultant. It was a go. I then went to an atty, just to make sure because I was moving across country and didn't need anything to go wrong. Atty said it was very acceptable as far as he could tell. I've been at this a year and a half. One problem is that the community took over the HOA, a month after moving here or I wouldn't have had any issues with the developer. Since then, we've had three BOD's and two ARC's. The first application for the court, was met with "If I can't afford it, do you think I am going to approve it for you?" from the ARC chair, even though she approved a sportsarea the same size for her neighbor across the street. It had a concrete pad, like mine would, but it was not the trademarked name or having the special surface that mine would, but the point is the concept was approved for her neighbor, but not for me. I was shocked and invited her over anytime to use it. The comments were amazing. "We would be bringing in gang bangers and the wrong element." Then I see people of this nature on their property and realize he is judging me from his life experiences! At my home, would be friends of my sons, practicing and/or having fun. Then the second Board comes on, it took some time but we agreed on everything, but placement. I decided to let a professional place the court. It took me two months to complete this complete with a huge survey with plants, patio, court trees, etc. all included. for a total of 3K! New Board...Denied!! Now, I know this is a fairly new concept, but all I would be doing is to take a driveway court, which 82% of the homeowners have and move it straight back into a corner of my yard. I would think that this would be music to anyone's ear because it's far less visible, being that landscaping would also shield it from the street. Their denial was the following: Inconsistant with other projects in our neighborhood. My response was that it was similar to, but nicer and better materials etc.And...why do we all have to look alike and have the same things, when it adds vs. detracts to the neighborhood aesthetics. Second reason: The court which is a half court is too large for the lot, even though it fits into a corner with room for a pool or huge patio. Third reason: Aesthetically, it's not what we want. This kills me because I have THE nicest lot and landscaping by far and they are going to tell me about aesthetics? Besides, no one can see it, being shielded from the street. Across the street from me, a neighbor put up a HUGE colorful climbing structure that I have to look at every day at the end of their driveway and this is acceptable, but my court is not, with far less visibility, like maybe the top of the hoop!! My point is that we all have different needs, wants and desires, so we try to live our lives as amicably in a HOA and beautify the project, making it as inconspicious as possible as not to encroach on anyone's feelings, although a court like this is a hot ticket and would immediately improve property values around me by 10K. You should see this neighborhood, nothing is consistent, they don't follow what is in print for their friends, but hold others, like me, to a ridiculous level of accountability. It's crazy!! They can't get people to do much here, so wouldn't you think they would be willing to atleast work with me, being that all I am doing is investing in this community? The mentality here is the problem,but who's to say if I moved, it would be any better. These courts are seen in country club communities,on same size lots, so the HOA response is that we are not a cc community; well, it won't be with this mentality even though it's got location, location, location, but looks awful after the developer left.

The rules and regs state that everything you do to the back and front yards, has to be approved. But what was interesting, is that when I moved here, I didn't get my landscaping approved, not thinking I had to, and no one said a word, during the process and only compliments, after. But now...Yikes!! I've really appreciated all the input because it's helpful to see and learn different perspectives, BUT this is on the verge of the "ridiculous" and harrassment. I think they are concerned that if they approve this, the neighborhood will be over run with teens, coming over to play. But...I haven't heard this from them, although a Board member told me that since they can't control the use of my backyard, it was denied. Hmmm...can they control the use of anyone's backyard?? And haven't we been a very quiet family? That's us, so wouldn't it be nice to see my kids out, like the others?They've approved pools all over the place, and a pool can hold more than a court, so again, what's the problem? We have little ones all over the place, and at any given time, even in MY back woods, they like to run and play and there can be as many as ten or twelve on the average. My sons, age 14, sit inside, while others use our yard because there is nothing for them to do outside, except on occassion throw a football around. They don't like going up to the pool, because they can't swim with all the little ones around; mothers get ticked when they swim/kick and splash, but they can't do laps with the adults, either, according to rules. I really thought this was going to be our family entertainment and a way for one of my sons to practice, as he's heavy into basketball. One ARC member told me as a retort to that, that I should take the boys to the Y. I asked her if she took her kids to the Y, when they wanted to play with friends. She said No, because they are little and like to be home. I replied that only little ones like to be home? She said, don't you get it, get the f'ing teens out of here. This is a younger family community!! One previous ARC member asked me to donate the court to the community and put it up at the club house, as they'd love it up there. I said, oh do you ask that of those that apply for a pool? I don't want my kids roaming around and they love being home because we are on the go so much with their sports. I would just like a little piece of heaven in my lovely yard, so that they can truly enjoy themselves doing something that they love, while investing in the community. I've submitted letters from all neighbors around me with approval, but this just doesn't matter. I really want to stand up for this arbitrary way they are acting, but concerned about how the law that I've previously stated, might be viewed. Like someone said, it's dependent upon the kind of judge you get. I am ready to go to the newspapers and television advocacy group, though!