Homeowners' Rileghts to View HOA Variances

Has anyone had experience with homeowners being denied access to view all of the community's variances and supporting documentation?

We have had residents ask the board for access and the board attorney told the board to deny the requests. We are a 200+ homes, 55+, Pennsylvania HOA community.

Many residents believe the Architecture Review Committee has been inconsistent and unfair in their decision-making. But they need to see the variance paperwork to know how and why there seems to be such favoritism.

It appears the board is hiding something or there are details they don't want the residents to know.

Any info or help is appreciated. Thank you.

Let me cite an example of a situation which, on the surface, could appear to be inconsistent enforcement of the Declaration but closer scrutiny would reveal it was not.

In an association in which we previously resided, the CC&Rs stipulated two trees (from a list in the document) were to be planted in the front yard. From the inception of the Association in 1996 until approximately 2013, requests for variances to require only one tree or different species were consistently denied. The sole exceptions were for three lots which were too small to accommodate two trees under the rule and one variance granted (which should not have been) while still under declarant control. That owner was told the tree was grandfathered and the variance would not be renewed if the tree had to be replaced.

In 2013 a resident who was a master gardener made a cogent presentation to the Board regarding expansion of the list of approved trees; when asked his opinion, the landscape contractor agreed as did a local gardening expert in his weekly column. The same resident, and others, made a similar presentation regarding the two tree requirement. Beginning in 2008, the Board became aware certain of the existing trees on the list were beginning to invade the sewer connections from the home to the street, were lifting sidewalks, and were wreaking havoc with the in ground irrigation systems. Also, north Texas had suffered several mini-droughts prior to 2013 and was either in another or another began in 2013 which eventually became so severe irrigation watering was greatly restricted by municipal water agencies. Some of the trees were not drought tolerant, others were water hogs.

As a result, the Board changed the guidelines to eliminate the two tree requirement, to strongly discourage one species which was planted in about 50% of the lots by the builder and most of which were lost in a small tornado in 2011, and to allow three or four other species. The Board was able to do this without approval of the owners as the salient paragraphs in the CC&Rs contained the words "Unless otherwise agreed to by the Board . . ." Or some such.

Although these decisions were widely publicized in the newsletter and an e-mail blast, the management company received a number of complaints about inconsistent enforcement. Even the staff of the local council person got involved until a call was made to the city attorney.

So--what may appear on the surface to be inconsistent enforcement or granting of variances may be conscious decision making by the Board to address issues.

I recommend you ask specific questions regarding the variance(s) which may be affecting you and not all variances in general.

If homeowner A wants to see records related to homeowner B, he or she usually isn't allowed to do that due to privacy. Of course, if there was a lawsuit of some sort, a judge might want to look at all of them, but you're not there yet.

On its face, this request is too broad - how far back do you want to go? Do you want to see exterior change requests for EVERYTHING, ranging from window to landscaping and back to sheds in the backyard? In a community of 200+ homes, how many is many - 20? 150? 300? Twenty homeowners who were denied for one reason or another doesn't always mean there's a problem with the committee. Looking at the paperwork is one thing, but how can you prove for certain that the committee approved homeowner C's request but turned down homeowner D for some other reason (e.g. homeowner D lives next door to the ARC chairperson and they can't stand each other? How do you prove that, especially since the chairperson is only one vote?).

You may want to start by telling the Board there's a concern that the ARC is being inconsistent with its decision making on granting variances. You and your like-minded neighbors might want to talk to each other about your experiences and share that with the board. You should also request figures - how many ARC requests were submitted last year, how many approved, approved with variances, denied and denied after appeal. The board should have the committee chairperson attend a meeting to address those concerns.

Actually, it would be a good idea for the committee to share that information every year, along with suggestions for homeowners so they have a better chance of getting their request granted. The board can also use this to establish or update design standards - the homeowners can have a hand in that by answering a poll where they can make suggestions and another committee can be chartered to draft them. You don't have to address everything at once - start with the areas that received the most requests, such as windows and doors.

The draft standards could then be sent out to the homeowners for their comments and suggestions, the committee tweaks them further and then the board can approve or disapprove them. People who've already had their work done under the old rules (or when there weren't any) can keep what they have, but once that area has to be updated, the new standards will kick in. Make a list of those homes, so future ARC committees know who has what.

Finally, new blood is always good - how long have these people served on the ARC committee? If they've been on for years and years, it may be time for the Board to replace them. Advisory committees should be chartered by the board and its members should serve at their pleasure. If the board won't get rid of them, then the homeowners can get rid of the board and appoint new members.

My suggestion is you address the board directly, during an Open Forum or similar comment period during a Board Meeting. You should ask them directly why your (I assume it is your request but I'm not certain) request for a variance has been denied. Be prepared to include a specific citation or citations to previous variances apparently granted to others and remind the board of their commitment to be fair and open.

Do not be accusatory, do not threaten, and do not repeat hearsay such as that you quoted unless it was stated directly to you and, even then, it would be best not to repeat it in a public forum unless you have to.

Take the Joe Friday approach, if you know who he was: Just the facts, Mam. The Board has the right and responsibility to overrule the architectural committee when warranted.

Finally, if this matter is not directly affecting you, I recommend those it is affecting address the Board and not you.

Sorry, Peg, mant to add, what do your CC&Rs say in this regard?

But, Ben, I wonder if PA law includes variances of the CC&Rs as documents that Owners can inspect. I'm pretty sure CA does not and we're a very Owner-friendly state.