Can the HOA Reverse ACC Approval?

We built a new house recently and before build, we submitted house plan submittals. Everything was approved but we now have the HOA board threatening to potentially sue us because our driveway is out of compliance. Our CCRs are over 20 years old and regarding driveways it says: "All driveways in the Subdivision must be constructed of reinforced concrete dowelled into existing curb, washed gravel finish, brick pavers or other materials as approved by the Architectural Committee." During the submittal process, the Architectural Committee asked, "Please provide a plot plan showing the proposed driveway and confirm that the driveway material will be in compliance with the KCPOA CCRs, attached.” Our builder responded that driveway material would be concrete and will be in compliance. They then asked for a plot plan to reflect the materials planned and the builder responded with a plat with the word "concrete" written on the driveway. A few days later, the ACC approved our plans as submitted and we proceeded with the build.

The house took 6 months to build and the day after our driveway is poured, the AC emails us and notifies us that our driveway is out of compliance and is supposed to have a washed aggregate finish. We let them know that was never our intention and never did they ask anything about finish prior to approval. They let us know that they could see no path forward and that they would close the file and said they would discourage owners to use our builder in the future.

Several weeks later the HOA Board let us know that due to complaint calls they have received on our driveway that we need to change our driveway to a washed aggregate finish. They were willing to make an exception since we already poured that we'd only have to pull out the beginning of our driveway-- about 50 feet (it's a very long driveway). This cost be out of our pocket.

The Board insists that the CCR requirement specifically states that driveways be concrete with a washed gravel finish. We don't read it that way and neither does our attorney that we've consulted. We've made them aware that the driveways could also be built with brick pavers or other material approved by the ACC. They also claim that because our builder stated our driveway would be concrete and comply with the restrictions that it gave the indication that we would be complying with the finish requirement. We think that is an assumption on their part because finish was NEVER brought up. They threatened us and said that if they have to pursue this as a legal matter that any past offers are null and void and will pursue removal and replacement of the entire driveway, with one that is compliance with the CCRs.

Our neighborhood has about 15-20 homes, very small. Some are fully washed aggregate, some are washed aggregate for the first 10-20 feet and then concrete and our neighbor has a fully laid concrete driveway. Our attorney has written the Board a letter saying that with the plain language of the CCRs and the course of communication with the ACC that we comply and that the ACC approved the concrete as laid.

I'm curious what opinions are. We feel the Board is reading into what the CCRs is saying and have expressed that they believe that it says, "concrete dowelled into the existing curb WITH A washed gravel finish", however that totally changes the meaning and is not what it says.

Per your post documents state:

"All driveways in the Subdivision must be constructed of reinforced concrete dowelled into existing curb, washed gravel finish, brick pavers or other materials as approved by the Architectural Committee."

I would agree with your attorney due to the commas separating the various options. There is also the fact it states “other materials as approved by the Architectural Committee”. If they approved your concrete driveway they cannot later take away approval after constructed.

Has your attorney received a response yet?

Javier

I believe the citation in your CC&Rs could be interpreted to mean all driveways are to be of reinforced concrete with a washed gravel finish (leaving out the words about how it is to be connected), (then moving on to a new material for the driveway) brick pavers, or other materials as approved . . ..

In other words, if the driveway for which you are seeking approval is concrete it is to have a washed gravel finish unless you were to seek approval for a specific variation for the surface finish, such as a stamped concrete driveway.

Now, the next argument is whether or not the use of the simple term concrete on the plans and the statement the driveway would be in compliance was interpreted by those reviewing the plans as meaning you intended to install a "concrete driveway with a washed gravel finish" which met the CC&R provision. You did not specifically apply for a variation of the washed gravel finish, which would have been a plain concrete finish, you merely stated concrete with the (possible) implication it would have a washed gravel finish.

You may wish to consider the foregoing as a possible description of what took place and why you are being found out of compliance. You may also wish to consider asking the Architectural Committee if you can retroactively apply for approval of a plain concrete variation to the standard. I believe you and they would find doing so would cost everyone involved a great deal less money and angst.

If the Owner had approval I would contend they had an idiot Judge (which there are a few of them). Sorry ... If you submit a paint color and paint chips for approval and it is approved then the HOA if want changed and the owner is OK with any said change should PAY for redoing any item already approved and constructed.

Javier, the variations are not necessarily arbitrary decisions. The owners involved could have applied to the Architectural Committee or the Board for a variance which was granted. Although your association is most likely not still under developer control, we have experienced a number of client situations in which the developer granted significant exceptions to the CC&Rs or Architectural Guidelines when he still controlled the association. Our client boards in such cases have had to deal with both the fallout from others in the Association ("that's not allowed, make them change it back") as well as subsequent requests to emulate something the developer approved which was not allowed by the CC&Rs.

Remember too, the decisions of a previous board do not necessarily bind a present board. Particularly if there has been a documented change in policy developed and published. Association boards often change direction and guidelines to meet the needs of the owners, especially in matters which evolve over times such as style, color, variety of plantings used in landscaping, windows with and without muntins, etc.

I recommend you or your attorney drill down for all the facts before you take a final position.

I kinda agree with you, but HOA's can not withdraw an approval from the AC just because another homeowner doesn't like what was done. If I had gotten an approval for one thing and did something else, then yes, I would think the HOA could step in. In my case we did what we said we would do with the driveway. After the driveway was poured, the HOA got some complaints and then the HOA board started parsing words and said we were out of compliance.