Need Input on Building materials

In my opinion, you are trying to twist the words in the covenants. The phrase "shall be constructed of wood, stone and/or masonry stucco" implicitly excludes steel.

Would a court say that, "Yeahbut technology changes things. This covenant is outdated." Maybe. "The law is what the court says tomorrow."

As for other homes that are cement or brick, you might be able to argue selective enforcement. I am not sure I would say that either brick or cement are "stone and/or masonry stucco."

How much in attorney fees are you willing to pay to maybe get your steel siding? Might it be better to lobby a few years for an amendment to the covenants?

oh, and our building is proposed to have about 50% exterior siding of wood

To make a legal argument, this is not the way I would put it. Here are the legal arguments that have merit in my experience:

-- If brick, vinyl and cement products have been used so often, for whatever reason, then there is an argument that the covenant concerning building materials has been abandoned and no longer has legal force. You could ignore the Board's objections to your steel siding; let the HOA take you to court (maybe); hire an attorney (and forget about doing this pro se); and see what the court says.

-- The brick, vinyl and cement products are flatly in violation of the covenants. You have a right as an owner to bring suit and possibly prevails against the board and the owners who used the latter materials, because they all violated the covenants.

-- The covenant is effectively abandoned, so the Board is practicing unlawful selective enforcement by saying you cannot have the steel siding.

First, remember that many attorneys are happy to do whatever you tell them to do as long as you are paying the bill. This is what law school is largely about: Arguing for any position, using creativity, even the seemingly most indefensible position.

That part about preserving the continuity also got my attention when I read your first post. But from my reading of appeals court decisions, there would have to be an ambiguity in this covenant. Your attorney can argue there is an ambiguity. If the court agrees, then the next thing the court would say is that "ambiguities are resolved in favor of free enjoyment of the lot," and you get your steel siding. But I personally do not feel there is ambiguity.

Depending on how many buildings are not built from what the covenant requires, I think I might pursue an abandonment argument.

No,this is you trying to manipulate words in illogical ways in my opinion, because the covenant does not say "solely." I reject this particular argument that being only partly steel meets the requirements of the covenant. You say you all have case law on the lack of prohibiting yada.

Ultimately it comes down to how much time and money you want to spend fighting this. Your and your attorney's arguments have some merit. But it's a coin toss over who would prevail in court.

Let's see if anyone else here has insights that your attorney could use.

-- I am not sure whether you are largely agreeing with Carissa or myself or maybe both.

-- I am not sure the board's latest position (quoted herein) will count for anything until it's implemented as approval for a home in your HOA.

-- If you are saying something like, "the board is making up this sh-t as they go along, and disregarding the covenants," then I tend to agree.

-- A board cannot lawfully change ARC guidelines such that the guidelines violate the covenants. (Granted your attorney is ready to debate what the covenants say, such that anything goes as long as "harmony" yada is preserved. I am fine with him making whatever argument he wants, as long as you are willing to pay him. And sure, it's nice if you like the case law as well.)

CarissaM, "masonry stucco" is the same as "masonry"? Stucco is pretty specific IMO.

-- Understood.

-- Maybe one good demand letter from your attorney would get the Board to cave and keep at bay any fellow owners who do not like your faux wood (made of steel). Which I actually like.

-- The reason I kind of want the Board to cave is because of technology making the covenants somewhat outdated. Wood for one requires a lot more upkeep. Less upkeep means less work for the board and property manager to enforce covenants pertaining to unsightliness.

-- Another reason I want you to prevail is that IIRC you all have pretty big lots, right? The bigger the lot, and assuming the house is far enough off the road, the less your architectural choices really affect anything.

(MIND boggling, LOL)

I'm really asking people to read the covenant for what it is and provide thoughts. The ARC re wrote the covenant in our rules document to state:

"Exterior materials and finishes shall be harmonious with the surrounding environment, with stone, rock, stucco, natural wood, brick, and hardboard generally being acceptable. Metal exterior walls are prohibited"

So the ARC has completely abandoned the covenant by adding in several different materials not listed in the covenant, yet arbitrarily denied new technology steel that looks just like the hardieboard. So is the ARC providing a work around for the last 20 years or am I? And if you read the post, the judge stated the HOA nor ARC has any discretion regarding the covenants which means the ARC can not create these arbitrary rules which contradict the covenant.

I think it's important to get the wording right: What the ARC did is not a "work-around." It is an attempt to amend the covenants without the required membership vote. The ARC's guideline or rule is not enforceable by the courts in my opinion.

I would need to read the entire judge's decision. Until then, I agree with what you say right above.

I should clarify the above. The ARC's guideline or rule is not enforceable where it violates the covenants. Some of the guideline or rule is enforceable.