Do variances create precedent???

An HOA (in Texas) has a prohibition in the CCRs against something. Let's say it requires masonry siding, i.e. brick, stone or stucco. Hardi is not included.

A new resident submitted the architectural request forms to build a new home. The request lists "Hardiplank" as the exterior siding material. For whatever reason, the ACC approved the request and the house was built, with Hardi.

The popular understanding here is that if you approve something for one person, you have to approve it for everybody. If a board or committee approves something for one person, they can't just arbitrarily deny it for somebody else. That's called "selective enforcement," which of course is a no-no.

Presumably, this wouldn't apply to unusual circumstances, e.g. somebody creating an otherwise prohibited construction to accommodate a disability, or to build around an immovable terrain feature. This refers specifically to the resident's personal, aesthetic preferences.

So...... is the ramification here that from now on, we have to approve any request for using Hardi, and that the prohibition's language in the CCRs needs to be revised?

We've had several such violations lately in our subdivision and it's starting to get out of control. One resident is operating a private car repair business behind his house. Another just moved out and is renting his house to a tenant. Both are blatant violations of the CCRs, and there are others. I'm not sure what, if any, remedies are feasible, e.g. we can't go tell the resident to rip the siding off his house.

I'd like to hear your thoughts on this. Many thanks.

That is clearly stated, but doesn't it presume that both enforcements (or lack thereof) are occurring at the same time? So if you enforce covenant X against owner 1 but not owner 2 a week later, that's not selective?

The HOA should adopted Design Standards that regulates this.

You'll a board member, right, Ron? Your very first step is to check your CC&Rs. Look for something similar to ours cited below.

Article 9 in our condo CC&Rs is "Architectural Review." Section 9.20, is "VARIANCES. The Board may authorize variances from compliance with any of the architectural provisions of this Declaration.... The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular Unit and the particular provision hereof covered by the variance..."

For whatever reason, humans on our board also, time after time over many years, THINK an exception creates a precedent. They are wrong.

The other violations you mention should be handled in the way permitted by your documents, maybe your Rules & Regs and by TX. Do you have written rules & procedure about steps to get owners to comply with your Rules and with your CC&RS? If not, craft them per your docs & state statutes. If so, enforce them!

In CA, unlike in MichaelS' MN, ARCs do have the authority to approve changes. If denied, owners have recourse to resubmit to the Board and its word is final. I don't know about Texas.