HOA Reversal of an ACC Approval

In my experience reading case law, this covenant gives the AA a lot of wiggle room.

The fact that approval of a high profile boat cover has never occurred before this is irrelevnant, in my opinion.
If you are saying that, at a minimum, the HOA's withdrawal of approval would cost the HOA the amount it takes to put things back the way they were yada, then I agree.

Can you please clarify? Are you saying the HOA board wants the approval withdrawn but it thinks it does not have the authority? Is the HOA board under the deluded impression that the ACC calls all the shots? Because if so, the board is wrong.

Do give a timeline here. If the board is unhappy with the approval, then how did this slide under the board's radar?

The approval was given by the ACC without POA review (as I guess is SOP here). The lawyers are making much of Tex. Prop. Code 209.00505. Article (d)

Article (d) A decision by the architectural review authority denying an application or request by an owner for the construction of improvements in the subdivision may be appealed to the board. A written notice of the denial must be provided to the owner by certified mail, hand delivery, or electronic delivery. The notice must:
(1) describe the basis for the denial in reasonable detail and changes, if any, to the application or improvements required as a condition to approval; and
(2) inform the owner that the owner may request a hearing under Subsection (e) on or before the 30th day after the date the notice was mailed to the owner.

By my interpretation that is irrelevant to my circumstance, and I would reference Article (i)

Article (i) The board may affirm, modify, or reverse, in whole or in part, any decision of the architectural review authority as consistent with the subdivision's declaration.

I read that as ANY decision ... as Article (i) is independent / not subordinate to Article (d). The lawyers are interpretting that Article (i) references Article (d) and applies only to those appealing an ACC denial. I don't get that.

Also, as the Board have their own reasons for wanting this reversed, indpendent of my circumstance, doesn't that have relevance?

We've POA GM, a five member Board, a three member ACC. There are about 2400 homes in the neighborhood, and the POA apparently does review or approve the ACC approvals. They are motivate to reverse this one. The GM is apparently the only one speaking with counsel, and their interpretation ot the Property Code is that there is no mechanism for the Board to reverse an ACC approval ... despite the fact that they are as motivated as I am to do so. Sounds nuts to me.

I agree with you. And I have been reading HOA statutes and related case law for over 12 years, plus more. But I am not an attorney.

If this is the owner's lawyers talking, then they are doing this because it's what their client pays them to do: Make every argument possible in favor of the client's position. However I do see their reasoning: (e), (f), (g) and (h) all appear to refer to the appeal described in (d).

One reason I reject this is because the board decides who is on the committee and can replace the committee's members at any time. Legally the board has the final say about approval. Big boat owner's lawyers do not agree. Oh well. Off to court we go?

Note that this section of TPC 209 became effective just two years ago, in Sep 2021. Case law involving this new section is unlikely to exist, but if you want me to check, ask.

Of course. But the reasoning had better rest on what is in the covenants. The reasoning cannot be arbitrary and capricious. What "arbitrary and capricious" is just depends.

You said construction has stopped. Is this because the two sides' lawyers are fighting about this?

You ought to hire your own attorney. Coming here for preparation for a meeting with an attorney is fine. But overall, you sound smart enough that this forum is not going to give you anything useful. You're slumming it by posting here.

You all with the boats in Texas can afford attorneys. Keeping the view all by itself justifies it.

Appreciate your advice Ellen. I, by the way, am the little-boat guy next to the deep-pockets, big-boats (plural) guy. He owns multiple car dealerships, has houses all over creation, and will never be here but for a rare weekend ... and for that he is spoiling our enjoyment of our life on the lake.

I've got a lawyer ... by reputation a very good one. I probably would have been better off with one who needed he work. This one has more work than he can manage (and remeber I'm only a little-boat guy).

We are aligned in our ambitions with that of the POA. Intuitely it shouldn't be more difficult than the Board writing a letter to the property owner withdrawing the approval ... but the POA attorney has influenced the POA GM, who has influenced the POA Board, that under the referenced Property Code they have no authority to reverse the approval. My lawyer has concurred the interpretation of the Property Code, but then gone offline on question of how to proceed. Ideally, as the Board and I are aligned, we should get the lawyer to talk and make it happen ... but it's like pushing a rope. In the meantime the contractor is still driving piles and damages are mounting up. Can you feel my pain?

His comment, "The problem is section (d). It only gives appeal rights to an applicant who has an application denied."

I've hit him with the following queries ... no response yet:

1. I don't read it that way Randy. If article (i) were a sub-article to article (d), then that would be clear. As a stand alone article, doesn't it mean ANY decision?

2. Also of consideration ... The Board in their own interest would like to reverse this approval as it contravenes decades of precedent, and sets themselves up for considerable contention from those earlier denied boat houses, and conflict between others that may want a boat house and their neighbors. If the reversal is construed in their interest and not in response to an appeal from me, does that have bearing?

3. Can you and the POA counsel not speak and resolve a path forward? Both ourselves and the Board have our reasons for wanting the reversal.

Appreciate the advice Ellen ... even were it only an avenue to vent. We're off to dinner & will check back later.

I really feel for you and your plight, Chip. You seems so reasonable. I think BillD's advice to list other neighbors who you can see also are affected and, after Starbucks, jointly contact the ACC or the Board or. both. Or talk with a member of the ACC. Joint unified efforts is how we've made some changes in my HOA when the board has been lazy or stupid.

I agree with your interpretation of Article (i)

Visited old friends in an HOA across street from the Lake Conroe lakefront homes, and can see that tall boathouses not only would interfere with thier view, it also would give a very jarring appearance to an area of all lower structures. It'd be like permitting a three-story house in an HOA of single story homes on 40X120 foot lots.

Aiyeee!- tho't my 1st one didn't post.

ChipK, boards have replaced ARC members in the past. If this board is serious, ask it to do the same as needed to get an ARC that retracts the approval.

Of course, then the question becomes which parties will want to pursue litigation over this. Right now all I see are bad options that will be costly in many ways. The board should consider choosing the least worst of all the bad options.

Does the ARA meet the requirements of (c)? E.g. no board members may serve on the ARA. Nor may board members' spouses serve on the ARA.

Does the ARA have the required number of members on it?

If you post exactly what the Declaration says about appointing an ARA, this would be helpful.

There's nothing there Ellen. Three member ACC (Architectural Control Committee) / Five Board members / Completely independent. It only takes two of three ACC members to approve. The Board typically don't review or approve (2400 homes in here). The Board generally only get involved when a homeowner appeals an ACC denial. They are involved here, but as this case is without precedent in their experience, they're fumbling on what their authority is and their lawyer hasn't been very constructive ... he would have them believe they don't have grounds to reverse. I'm an engineer, not a lawyer, but common sense would suggest that the Board need only write a letter withdrawing approval, and his recourse would be to claim for damages (which at this point are negligible as it's early in the project). I'm not persuaded that whatever interpretation of the Property Code limits the authority of the Board (TX Prop. Code, 209.00505). Further, as article (i) of the code is not subordinate to articles (d) thru (h) which speak to a homeowner's right to appeal a denial, I read it that the Board has the right to reverse ANY decision by the ACC. As the Code is written, I think most everyone would agree with me ... 100% of English teachers. I don't get why the lawyers (mine included) is inclined to interpret it differently.

BTW - The neighbors have rallied in my favor and are bombarding the board with emails in protest of the approval (some heaviweights among them). The Board are trying to schedule and emergency meeting to address. My read is that at least 4 of the 5 Board members favor a reversal ... they are just uncertain that they have grounds to reverse and are uncertain how to proceed. I've encouraged that our lawyer and theirs speak, as it appears there is agreement that this should be reversed.

I agree. I particularly do not understand why your lawyer is not backing you up, weaponizing section (i) on your behalf. Further you should look for anything in the covenants that speaks to architectural changes having to be 'in harmony' with the neighborhood.

It's great that the owners are speaking out. No doubt because of the harmony problems and because of inconsistencies with past ARA denials (of high profile boat houses).

I was in Southern Colorado last week looking at homes on large lots on/near a large lake. I saw these high profile buildings and low profile buildings and pondered. Now I know what they are. The high profile buildings are an eyesore IMO. However as they are common for this particular community, this is what the area has become. I will say a few years ago I was visiting this same community and do not remember seeing these enormous buildings.

From referenced TX Property Code:

(i) The board may affirm, modify, or reverse, in whole or in part, any decision of the architectural review authority as consistent with the subdivision’s declaration.

The topic of whether or not the Board "controls" the ARC has come up. In my HOA, sure, they 'control' it, but it is a very crass control mechanism where the Board says "Hey ARC, the Board wants you to do X. And if you *don't* do X, we'll remove you from the ARC and replace you with someone who *will* do it." Finding replacement members for the ARC is the *least* of the problems.

It occurs to me that Chip is an engineer - I suspect he could handle sitting on the ARC himself, if it came down to it. It may be different where he is, but most of what I seeing coming through our ARC is fairly ordinary stuff (roofing, fencing, painting, landscaping, ...) and our ARC tends to resolve each request largely based on precedent.

(For what it's worth, they recently had one slide by them regarding painted brick - the application itself was borderline deceptive and I think the ARC simply dropped the ball).

I took a look at TPC 209.0505 and I think I understand why the attorneys are agreeing that 209.0505.(i) is not stand-alone. I'm posting the entire statute below; my simple-minded, non-attorney belief is that this code is written extremely poorly. In short: (e), (f), (g), and (h) should really be (3), (4), (5), and (6); and (depending on the intent of the lawmakers) (i) should be either (e) (if it is a new article) or (7) (if it is intended to be subordinate to article (d)). If this were software it might compile but I doubt that it would produce correct output.{1}

Again: IANAL, and I've never taken that Legal Writing class that L1's are always griping about. So perhaps this is some kind of accepted exception in the writing of statutes. But I'll bet $1USD that this is the problem. I'm not certain it will help at all, but notice 209.0505.(b).(2).(B), which more or less maps to "(b) This section: (1) applies only to a property owners' association that consists of more than 40 lots; (AND) (B) has the right to veto or modify a decision of the architectural review authority." In my (thoroughly biased) opinion, this implies that a non-subordinate article (i) is what was intended.

Sec. 209.00505. ARCHITECTURAL REVIEW AUTHORITY. (a) In this section, "architectural review authority" means the governing authority for the review and approval of improvements within a subdivision.

(b) This section:

(1) applies only to a property owners' association that consists of more than 40 lots; and

(2) does not apply during a development period or during any period in which the declarant:

(A) appoints at least a majority of the members of the architectural review authority or otherwise controls the appointment of the architectural review authority; or

(B) has the right to veto or modify a decision of the architectural review authority.

(c) A person may not be appointed or elected to serve on an architectural review authority if the person is:

(1) a current board member;

(2) a current board member's spouse; or

(3) a person residing in a current board member's household.

(d) A decision by the architectural review authority denying an application or request by an owner for the construction of improvements in the subdivision may be appealed to the board. A written notice of the denial must be provided to the owner by certified mail, hand delivery, or electronic delivery. The notice must:

(1) describe the basis for the denial in reasonable detail and changes, if any, to the application or improvements required as a condition to approval; and

(2) inform the owner that the owner may request a hearing under Subsection (e) on or before the 30th day after the date the notice was mailed to the owner.

(e) The board shall hold a hearing under this section not later than the 30th day after the date the board receives the owner's request for a hearing and shall notify the owner of the date, time, and place of the hearing not later than the 10th day before the date of the hearing. Only one hearing is required under this subsection.

(f) During a hearing, the board or the designated representative of the property owners' association and the owner or the owner's designated representative will each be provided the opportunity to discuss, verify facts, and resolve the denial of the owner's application or request for the construction of improvements, and the changes, if any, requested by the architectural review authority in the notice provided to the owner under Subsection (d).

(g) The board or the owner may request a postponement. If requested, a postponement shall be granted for a period of not more than 10 days. Additional postponements may be granted by agreement of the parties.

(h) The property owners' association or the owner may make an audio recording of the meeting.

(i) The board may affirm, modify, or reverse, in whole or in part, any decision of the architectural review authority as consistent with the subdivision's declaration.

Added by Acts 2021, 87th Leg., R.S., Ch. 951 (S.B. 1588), Sec. 11, eff. September 1, 2021.

Finally: infuriating as it must be, I can kinda guess why the Board isn't eager to rescind the ACC approval and possibly incite a lawsuit. I can't point at anything specifically, but I think they're supposed to try to avoid that; their D&O insurance might not cover them, etc.

Just a random thought: maybe what needs to happen here is to bystep the Board/ARC and contact the neighbor directly, and simply ask them nicely if they could live with a dock that doesn't disrupt your view so much? It seems like a very pollyanna kind of suggestion, I know, but despite being a Big Boat Guy, your neighbor might sympathize. Actually doing this would require talking to someone who is nice - so this is where I get off.

Bill

{1} It could also go "(e) (1) (2) (3) (f)" or "(e) (1) (2) (3) (4)", or have an entire section devoted to rescinding ARC decisions.