Reversing Prior Board Rulings

MegC1, I think the biggest problem is going to be to get a majority of the board to see this in a logical and legal way.

By my reading over the years, the HOA board has ultimate approval. If you want to know why, ask. I do not feel a walkway is the same as a deck or patio. Hence I do not think this ACC-created rule applies.I am not so sure I would define pavers for a walkway on the side of the house to be an "improvement." This is mostly because: The covenant cites stoops, porches and decks but not walkways. When the courts see specific improvements named, they are not so quick to say that all "improvements" are prohibited. Toss in: "Improvement" is so vague that a court might very well call the word ambiguous and use the long-established precedent that,when an ambiguity exists and cannot be resolved by reading the entire Declaration, then the covenant is interpreted to allow the owner free enjoyment of property. This means a court might allow the pavers, because the Declaration is ambiguous. Toss in this as well: Often Declarations have a clause saying that the board's reasonable interpretations of the Declaration are binding on owners.

Does the Declaration have a definitions section? Does the definitions section define "Improvement"?

If the pavers are an "improvement," then the covenant is clear that they are not allowed on the side of the house. Meaning that, if the pavers are an improvement, the 2019 reversal (prohibiting pavers on the side of the house) is appropriate.

The chances that your board understands any of the above, from a covenant interpretation standpoint, are near zero. I say this not to be mean. But more to suggest that these all-volunteer HOA boards often make up things that seem reasonable to them. It's hard to blame them. They are not attorneys. Even if they were all attorneys, as I indicated above, they might not very well agree on how to interpret the covenants here. Also one trial court might take one position on this, and another trial court might take a different position.

If you are on this board, I think all you can do is vote based on your own understanding. Explain yourself once, entertain questions, but do not try to persuade anyone.

If I were on this board, I would vote my conscience, based on my understanding of the legalities here. In this case I would vote to permit the pavers on the side of the house, because I find "improvement," with the other language, too vauge.

When those who were ordered to remove the pavers get angry, I would sit there and calmly state that IMO boards do the best they can.

Also arguably a fair reading of the covenants would call for these owners to have sought approval prior to installation of the paver.

Let the chips fall where they may. I personally do not think those who were ordered to rip out the pavers have much ground on which to stand at this point.

Situations like this are one reason I think HOAs, with their all-volunteer boards, are ridiculous. But they are also not going away.

Thanks ElleN for your thoughts!

DCCRs define everything as an Improvement (grass, trees, etc.) - "Improvement shall mean any and all man-made changes or additions to any portion of the Property, as well as all grass, shrubs, trees, vegetation or landscaping on any Lot."
So therefore all of the homeowner planted vegetation on the side of the homes would also be an improvement (which is allowed). It is way too broad of a definition in my opinion.

Additionally you are spot on in that the ACC (and Board) make up rules that they view as reasonable and then use it as precedent for future decisions. I'm in a state that doesn't have much recourse unless someone wants to sue, so hopefully over the next few years we can have more Board turnover.

If I were on the board, I would want to first have a chat with the attorney about the likelihood that the HOA would have to reimburse angry homeowners for the money they spent tearing out pavers. It's a good idea to figure out potential risks before taking an action, rather than finding out when the consequences land in your lap.

I second the comments about volunteer ACC committees running amok and creating unnecessary problems. (I also view pavers as "landscaping" rather than improvements similar to decks or gazebos.)

The owners with handicapped wheelchair bound family members were forced to rip out pavers, ? How about the elderly with mobility impairments

It was not a handicapped wheelchair or elderly homeowner, but you make a very very important point. I think a homeowner's unique needs can get overlooked for the sake of consistency/uniformity.

The courts have said they have to be reasonable and the ARC-created or Board-created rules must be within the bounds of the covenants.
When it comes to use restrictions, boards may not lawfully create "policies" that are outside the covenants.

Yes. ARC boards can apply "aesthetic taste" standards to applications, which can be unfair if abused.

Granted, if challenged, there might not be that wiggle room.

Realistically, most members look at the cost, time and energy involved in bringing legal action that (I would estimate) 99% of the decisions are never challenged.