New Board Guidelines

In our most recent elections I was voted in as a board member as was two others on a three member board. All three of us have been in the HOA, which is over 8 years old, for 2 years or less. Of course all three of us have our own aspirations but generally we do have consensus on many things. The problem that we face is differentiating between a change in policy and establishing general guidelines. I know the topic of a shed has been beaten to death in this forum but in this case my focus isn't on the shed itself but on defining guidelines that clarify if a shed can be allowed per the covenants. This is because in the past some sheds have been approved while others have not and we want to ensure consistency here. At the same time the new board would like to allow sheds with limitations. Just to be clear we still are a declarant controlled HOA.

CC&R Article VI:
"Section 10. Architectural Standards. No exterior construction, alteration, addition, or erection of any nature whatsoever shall be commenced or placed upon any part of the Community, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until plans and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Committee (“ARC”) established by the Board."

"Section 37. Brick Requirements. All dwellings and permitted accessory buildings constructed on the lots of said subdivision shall have an exterior of at least fifty percent stone or
masonry brick construction, with no less than twenty percent of the exterior of the sides of the dwellings or buildings consisting of stone or masonry brick unless, in the sole discretion of the Architectural Review Committee, the style and exterior of the dwelling shall be deemed to architecturally enhance the community. Visible unpainted red or yellow "sewer brick" will not be allowed

The above sections are the two in questions. My questions:

1. How much leeway does the board have in allowing pre-manufactured sheds as long as they're, say, not visible from the road and meets size and color requirements set forth in the guidelines? In other words based on Section 37 would the board be able to allow a wooden shed that's painted in a similar color scheme as the house? The guideline maintains a difference between a structure mounted down to a foundation vs a structure that could be considered portable. Pre-manufactured sheds are technically portable but one could argue so are mobile homes.

2. If a guideline were provided for the ARC to follow that stipulates what's acceptable, is this considered a change in policy or just general guidelines? This question is important because a policy change would require the board to distribute copies to the community and allow for a comment period. A general guideline for the ARC to follow as the boards interpretation of the covenants wouldn't require distribution and comment period.

While the current board would like to allow sheds within reason the current covenants can't be changed without the declarants approval of which I'll guarantee won't happen. Any help would be appreciated.

Chris

What you are proposing is the shed can violate the Covenants as long as it cannot be seen form the road. Wrongo.

No one actually answered the question. My question wasn't in regards to the shed itself per se, the shed was an example, but how to differentiate between guidelines and a policy change that would require approval of the community/declarant? Based on responses there's no such thing as a BOD having authority to establish guidelines despite every HOA in the country doing it, i.e. size and shape of political signs. And no, a new board cannot come in and change a previous boards guidelines. Revoking a guideline established by a previous board requires majority approval by the community or declarant.

Per Article VI Use Restriction and Rules. Section 1. General. “In addition, the Board, by a two-thirds (2/3) vote, may, from time to time, without consent of the Members, promulgate, modify, or delete other use restrictions and rules and regulations applicable to the Community. This authority shall include, but shall not be limited to, the right to limit the type and size of vehicles within the Community and to set the maximum and minimum speeds of vehicles on private streets within the Community and to impose all other necessary traffic and parking regulations and to restrict the maximum noise levels of vehicles in the Community. The Board may also restrict certain portions of the recreational facilities administered by the Association to adults only. Such use restrictions and rules shall be distributed to all Owners and Occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and Occupants until and unless overruled, canceled, or modified in a regular or special meeting by a Majority of the total Association vote entitled to vote thereon and, so long as the Declarant has an option unilaterally to subject additional property to this Declaration as provided in Article X hereof, the consent of Declarant.”

The point is we’re just trying to do the right thing and follow the appropriate process. Changing the covenants requires the Declarant while establishing guidelines where previous guidelines didn’t exist only requires majority board approval. I’m trying to get clarification on where the line is drawn.

Well, Christopher, and excuse me if I didn't read the sections closely enough, I'm wondering why you/your board thinks that "policy" changes must be sent to owners for their comments? Can you cite a section of your CC&Rs or bylaws that says that? Or AL state law?

You wrote: "... a policy change would require the board to distribute copies to the community and allow for a comment period. A general guideline for the ARC to follow as the boards interpretation of the covenants wouldn't require distribution and comment period."

Sorry for not answering your question either, but need clarification.

Chris

We might have a semantics issue here. Typically Covenants, Declarations, Bylaws, etc. require a specific number (% of whatever) to change. These are things people agreed to when purchasing so changing them must be rigorous.

Rules and Regulations, Guidelines, Suggestions, etc. can be changed by the BOD alone.

One example is a swimming pool. The BOD probably could not close it down without owner approval (% depends on your docs) but the BOD can when it is open. Could this lead to abuse like open 11AM to 1PM? Yes, but they might could do it so the answer then would be replace them.