Assume Approved?

Hi,

We submitted a request to install a pool and fence. Original request was submitted 3/14/19. I’ve gone back and forth with HOA inquiring whether the developer has approved the requests. Our development is new, only 14 houses (eventually to be 200). A couple weeks after the HOA replied saying developer was “checking on something”. Fast forward to today. It’s been 43 days since submission. I was reading bylaws and found a section that said requests will be approved/denied in writing within 30 days, with the option to extend it by 10 more days. I have nothing in writing, nor have received a call, saying approved or denied, nor has there been a request for the extra time. Is it safe to assume my request as approved?

Thanks for your time.

They are both allowed. Any “architectural change” (which these fall under) must’ve approved. We followed all directions. I have all communication (which isn’t much) saved. We have to submit their form for the request, a copy of the plat, and a drawing as to where things were going. We were told we had submitted everything necessary for them to make a decision. According to neighbors, this mgmt company is notorious for taking forever to reply. But I feel 6 weeks is a bit long to say yes or no to things that are allowed.

Awesome! Thanks.

I usually agree with Augustin, but unless your documents say something like: after xx days, owners may assume their ACC change request has been approved I would not start work on this project.

You may want to contact the developer or her/his board of directors personally to inquire about the delay.

It does. It says “BCCs failure to approve or disapprove any plans submitted for approval in compliance with this article within 30 days shall be conclusively deemed as an approval unless within the 30 day period the BCC shall notify the party submitting the plans that it elects to extend the plan review period by an additional 10 days”. Which they have not done.

It’s just driving me crazy. We went from a no HOA house to an HOA house. I’m not liking it very much lol. Plus no one is returning calls or emails. It’s pretty frustrating. I’m not even bothering them every day. It’s been weekly. So they’ve had ample time IMO

https://apps.wv.gov/SOS/BusinessEntitySearch/

I say do nothing until you have written approval to proceed:

Great. I am back to concluding that you appear safe to me.

For the lawsuit JohnC46 cites, the HOA member, "said he submitted the plans and the board did not respond. [His HOA's] board denies this." It is distinguishable.

No problem, Mark. I trust you saw that, after DeeG confirmed what Kerry asked DeeG to confirm, I returned to my original position. Maybe the caveat should be, "Yes, DeeG, I think you are in your legal rights. But developers do have way more money than an ordinary HOA. The developer could take you to court, and one of the first court actions could be an injunction to stop construction until the lawsuit is resolved. While afaic you are in your legal rights, this does not pay for an attorney to defend you and explain this." Hence a lot of folks here are advising you to get a little more back-up on the point. They may be right. Power beats truth all the time, power being deep pockets to pay for an attorney to delay and obstruct for years. For the record, have other members installed pools and fences?

One of the reasons not to write the developer yet again asking for approval is it may re-start the 30-day + 10 day waiting period. The risk of asking again is that the developer may say no. Whereas right now, per the governing documents with emphasis on "conclusively," DeeG1 has the law on her side.

Oh no...I get it. I’m not going ahead with anything quite yet. I was just trying to get more opinions. And I actually do have documentation as to when things were submitted. I appreciate everyone taking the time to post an answer!

EVIDENTIARY documentation which is admissible in a court of law ?

eg. time stamped receipt - certified mail 'chit' - text acknowledgement - etc

NOT merely your notes

Best of Luck

DeeG1, quick but important tip: Do not delete these emails from you server. With some exceptions, printed out copies of emails are not enforceable in court. Copied and pasted emails are not acceptable in court. Just leave the emails on your server, maybe in a separate email box digital file folder. It's almost better to used hard copies of original signed submissions and hard copies of receipts. Certified mail, return receipt requested as often as possible.

Maybe I (re)read the above too fast, but it first seems liked th developer was in contoal o your HOA and then, later, that the developer isn't?

So there is a board, either comprised of the developer's people including him, or homeowners too? It seems like you might want to send something to the Board c/o your registered agent and politely ask for an update.

Does this board have meetings that are open to Owners as is required in many states? Or is WV a "closed meeting" state?

DeeGe

You are under Declarant/Developer control so he/she is in control. Do not, I repeat, and again I repeat, do nothing without written permission from the Declarant. What other owners think does not matter.

Hello,

I thought I would give you an update on this situation. On Tuesday I emailed the HOA again and firmly but politely asked what the hold up was and that according to our bylaws I could go ahead and assume our project was approved since it had been over 30 days. The HOA emailed me and told me she was sending the msg to the developer and she’s have an answer in two days. I let it go until today. I asked what the exact issue was and that we have been more than patient. She immediately called. She told me that the project is going to be approved (grudgingly). Apparently the developer wasn’t excited to have an above ground pool. She said “he will approve your pool since there is nothing in the covenants regarding pools. But he said he’d rather you put in an inground pool.” Well, these lots are situated where the front yard is bigger than the back yard. I hate it but it is what it is. And you cannot built within the 20’ setback (which is also extreme here. Every other neighborhood is 10’). So in order to do an inground pool we’d need a variance and we’d have to pay for it to be redrawn. The cost for that was crazy. Add that to the pool price and it was just unaffordable. I told the HOA agent, “Well, if he wants inground pools then he needs to either change the setback rules or he needs to adjust his houses and move them up 10’”

So long short...he didn’t want to approve, but he had to. We will probably be the only people allowed to have an above ground pool. Even if new covenants come out regarding pools it will be noted in there that our lot is the exception. The 7 plus weeks it took was because he was basically trying to find a reason to deny us and he couldn’t.

Also, the HOA agent flat out said we were within our rights to put the pool in anyway because of them failing to make a decision within the 30 days. But I do feel better having an approval letter in hand. Oh. And the fence was approved, too. There was never any question as to that approval lol

Thank you all for your insight. I appreciated the help!

... figuratively speaking ...

I agree.