Can a noncompliant project be approved without a variance?

Our HOA's ACC (Architectural Control Committee) has a history (before we moved here) of approving numerous projects (homes, outbuildings, fences, etc.) that were totally noncompliant with the CCRs. For example, the location of an outbuilding, or the selection of fencing or roofing materials.

As is typical, the CCRs state that if a project is denied due to noncompliance with restrictions, the owner can resubmit the project to the ACC and ask for a variance. The ACC may then approve or deny the variance.

The question is, can the ACC approve a noncompliant project WITHOUT any mention of a variance? That is, simply approve it on the initial submission as they would an ordinary, compliant project? Are there any ramifications if they do so? Are such approvals legally valid?

In the past, this has happened quite frequently in our subdivision.

Ron

In most associations, the BOD appoints committees such as the ARC. If the ARC was allowing non-compliance things, the problem lies at the feet of the BOD. Chop the head off.

I have seen such language in some covenants.

I chose not to purchase in such developments because the granting of variances could easily become a favoritism decision vs. one based on merits. If the Association grants one variance it becomes difficult to refuse similar variances.

Additionally, if enough variances are granted, the covenant that was disregarded for a variance might become unenforceable (but a court would need to rule on that).


This sounds like a procedural issue vs. an approval issue.

If the approving authority was willing to grant a variance if asked but simply skipped the "asking" step, then procedures weren't followed. The approval would likely still be valid.

Providing the approval was in writing (to provide a paper trail) the owner would have been acting in good faith and any rescinding of approval would likely give the owner claims to recoup damages from the Association (of course legal action would be required). If approval was verbal and there is no mention of the approval in the committee minutes, then it becomes an I say, they say argument.

Thanks for the replies, they are appreciated.

This BOD/ACC has a history of approving noncompliant projects for themselves, but denying them for new residents or other applicants. In fact, in several instances, they completed projects without even applying for them; they just built them. Small-time cronyism.

Most people get on a BOD to implement their agenda which can range from strictness to do as you want. Therein lies the problem with many BODs.