ACC goofed. Now what?

If the shed approved by the ACC did not meet the CCRs, the approval is invalid. No one is allowed to violate the CCRs, not even the ACC. There is no such thing as an acceptable compromise. If you want to change the CCRs to allow the type of shed that can be used, then follow the procedure to amend your CCRs and do that. Until that happens, there can be no exceptions. (Besides, once you start to make exceptions for one, you have to make them for all; the precedent has been established).

The ACC should have known beforehand from the brochure supplied that the shed would not meet the requirement of the CCRs. The problem is, now, how do you get out of it?

IMO, the homeowner should be informed that the approval is invalid because the CCRs cannot be violated. If it is a prefab shed and the homeowner can return it with no loss, then good. If it can be sold so the homeowner can get his money back, good. Otherwise, the association may have to make up any loss to the homeowner since it was their mistake (the ACC's mistake) that resulted in him buying the shed.

Be more careful the next time.

A Committee can NOT make any ruling that is in conflict with higher authority rules. The poster who said this Board may have to eat crow is right.

Now . . . someone needs to go over those CCRs and see if they are restrictive in a silly sense, i.e. outdated. Since resin roofs were probably not even invented when those CCRs were written, it may be time for some updating.

That's the problem with putting iron-glad rules in CCRs or Articles, instead of passing the authorization on to the judgment of the next generation of Board members or AC.

I have to agree with DJ.

Our Architectural Committee approved, in writing, a metal roof on an outbuilding (a copper roof on a pool house).

In signing off on the approval, the Arch Committee chair wrote, "We acknowledge that metal roofs are not allowed per our community guidelines, however because this roof is expensive and is nice looking, we are approving on waiver this roof."

We've had homeowners throw all kinds of fits over this, and even have had one try to do the same thing, and it was rejected.

The problem is, once the Arch Comm approved the individual construction of this outbuilding, we, as the board, cannot UN-approve it and make him replace the roof.

We MAY, however, if push comes to shove, have to allow metal roofs on other outbuildings. We will just have to wait and see what happens on that.

But that Arch Committee person is no longer on the board or the committee.

We had to get rid of him because he WAS, in fact, inconsistent with approvals and waivers, granting them to his friends and denying them to people he thinks dissed him.

Our Master Architectural Committee approved the use of a polymer corrugated material to be put over an open courtyard to turn it into more of a "sun room" The sun room is in plain view of the street. Our CC&Rs forbid corrugated roofing materials of any kind.

That was mistake #1

Mistake #2 is that it took the CC&R Inspectors and their Boss SIX YEARS to notice the unauthorized materials, which were, I'll repeat in plain sight from the street.

Mistake #3...instead of realizing that after six years and a MAC approval, what can you really do, the CC&R folks decided to start fining the guy. It went to the Hearing Board, they said he needed to replace the roof, and he appealed to the Board. Aside from making us look like fools for our staff missing this eyesore of a violation for six years, we could have been sued by the homeowner- isn't it past the statute of limitations?

We voted to allow him to keep the roof with the stipulation that when it comes time to replace it, it be with approved materials, or should he sell the home he either replace the roof or provide a replacement allowance to the buyer.

Thanks for the feedback everyone. We had our Board meeting and these two showed up. Turns out they are partly just mad at ME. When they first sent an email message to us to inform us of the problem, I was the one who responded and told them that the shed had been approved. For some reason, in their minds that meant that I had personally given the homeowner the approval. There are some other personal issues going on there, but I had nothing to do with the original approval of the shed. While I was part of the ACC for about a month earlier this year, I quit the ACC when the Board asked me to come back onto the Board.

They were also miffed because they weren't notified about the shed request. As I mentioned before, they are former Board members but did not run for office in the last election. One of them also ran the ACC while he was on the Board and had assumed that he was still on the ACC even though he didn't sign up for it or otherwise give the Board notice. While our CC&Rs don't prohibit a Board member from being on the ACC, it doesn't seem like a very good idea to me, which is why I quit the ACC when I rejoined the Board.

FWIW: Our CC&Rs do include a clause that gives the ACC fairly broad powers:
"Discretion of Committee" ­ The decision to approve or disapprove proposed plans rests entirely with the Architectural Control Committee, and shall be authorized to issue rules relating to the implementation of these Declarations, including governing the design, construction, location, and appearance of all Improvements and landscaping on the Property.

That clause has been used in the past to grant variances. Typically these variances dealt with Satellite dish placement and trailer parking, but I see no reason why a variance can't also be granted in this case. As I mentioned, the shed looks fairly decent and the only thing that is strictly out of compliance is that the roof material is not shingles. Maybe we'll ask him to glue some shingles onto the roof. I may even have some extras from my shed.

"Michele,

If this is what your AC actually said, and I interpret "communtiy guidelines" in the literal sense, then I would agree, the AC can make any decision it wants. Guidelines are not requirements, and generally are within a board's or committee's power to create, change, modify, grant exceptions to, etc. at will.

But CCRs are requirements, generally requiring a large number of homeowners to amend or change, and are not within a board's or committee's power to change, modify, or grant exceptions to. If that were true, then the CCRs are just guidelines as well, as some board members have suggested and as we've sometimes seen posted in this forum.

I am considering running for a seat on the BOD. What would the benefits be and why would someone want to run for this position other than a vested interest? I am also on the arc committe and have had problems as the previous people on the committee allowed for buildings and corrals that are clearly contrary to the CCR's.

Not necessarily, Kathryn, but you water down your case, as a board, if you grant "special" waivers that can't be supported by things like the layout of the lot doesn't allow for strict compliance, and so forth.

In our case, for example, the sheds must all be place within 10 feet of the main structure and in such a way as not to be seen from the front of the house if one were to stand directly in front of the main structure.

What does one do if the shape of their house and/or lot doesn't allow for that? Well, you'd have to grant a waiver and explain that as the reason why.

If the waiver is just capricious or arbitrary or doesn't have some solid reason why it is a waiver or variance (such as the roof in my previous case above simply "looking nice"), or if the waivers given aren't consistent in their reasons, then you have some problems.

If someone were to take you to court, you would have a difficult time proving, or even explaining, why the CC&R against doing it the way they want it IS, in fact, a problem.

If your CC&Rs say "no metal roofs," and you have already allowed a copper one, and the only reason for the waiver given is written down and it says "because it's going to be pretty," then, if I felt strongly enough about MY copper roof, I could take you to court to force you to give an approval/waiver, just as you did for the other guy.

The judge, while maybe keen on governing docs, would still have to look at us and say, "why?" "Tell me why this one is going to be any worse for your subdivision than the ones you've already allowed?"

We simply couldn't do it.

If you start down the road of inconsistency or ignoring or "waiving" your CC&Rs in some cases, and not others, then you are going down a slippery slope that will make it tougher to enforce against.

Those types of inconsistencies with enforcing CC&Rs are much harder to survive than inconsistencies in enforcing CC&Rs where the homeowner is actually VIOLATING them. In these types of cases, you, as a board, are saying, "In these cases, it's OKAY to violate because X, Y, and Z."

Well, you better have some solid, explainable "X, Y and Zs" then!

You can still disapprove it. And you SHOULD still disapprove it.

You shouldn't just throw up your hands and say, "Oh well. Docs are bird cage liners now."

And our board would go by the letter/intent of the CC&Rs from a certain point forward, too. (which we did have to do, in fact.)

The homeowner wanting to get a similar variance approval would be taking a roll of the dice, too, if she were to fight it.

Especially if the CURRENT board can show that it does not provide arbitrary variances.

What you might want to do is look at sending letters to the other "approved" projects to let them know that they are not in line with the CC&Rs and their approvals are in conflict with the documents. However, due to their previous approval, their project will be "grandfathered." When the time comes to repair or replace the project (fence, shed, whatever it is), then the renovated building/fence must come into strict compliance with the CC&Rs.

That way, if you ARE challenged going forward trying to enforce against something that was "approved by variance," then you have something to show that will strengthen your position.

As I have said before, neither the board nor the ACC, has the authority to grant waivers or exceptions to the restrictions that are in the CCRs. The CCRs can only be amended or changed by a vote of a specified percentage of homeowners, and in many states, that is even spelled out by law. By granting an exception or a waiver to a provision in the CCRs, the board or the ACC is, in effect, changing the CCRs to suit a single homeowner. They do not have the power to do that.

So, if they do go ahead and grant an exception, what should be done about it? Nothing? I don’t think so. I have said that I believe that the ACC could rescind their approval (or the board could overturn it), and I believe they have the authority and justification to do that. As we have seen, there are others who disagree with this. Yes, it is a mean, low-down thing to do, and I would be extremely upset if I were the homeowner that it happened to. But, let’s leave this issue aside for now, and explore a little further.

Suppose we DO decide that the only, or the right, or the best thing to do is to let the decision stand. Have we opened up a potential can of worms in that at some future time another homeowner may want a similar exception and use this example as justification that he or she is entitled that it be granted? Not necessarily.

I think that, at the very least, the board should pass a resolution censuring the ACC for having violated the CCRs in approving an exception. The resolution should further state that future violations of this nature will not be tolerated and that sterner measures could be taken. This should be followed up with a letter to the chairperson of the ACC, directed by the board and signed by the president, informing the ACC of the censure action, the nature of the violation and a copy of the relevant provision of the CCRs that has been violated. This places it on record, in the minutes, that there has been a violation and that other homeowners should not expect to be granted a similar exception in the future. This may help to ward off any claim of “well, they were allowed to do it” by a homeowner, since it has been established and acknowledged that this was clearly an error and that it will not be permitted to happen again.

In the extreme, or if a similar violation happens again, the board could vote to demand the resignation of the ACC members. If the members of the ACC are appointed by the board, the board could vote to remove and replace them. If they are appointed by the president, the board could pass a resolution demanding that the president remove them and appoint replacements. (However, to be practical, if your HOA has trouble getting volunteers to serve on the ACC, you may want make sure you have replacements who are willing to serve first.)

So, while we may not exactly agree on what should be done, I believe that to simply throw up your hands or shrug your shoulders and say, “oh, well,” would be a mistake. I think that the board must take decisive action and do SOMETHING immediately, and by so doing, they will strengthen their position to say “no” the next time

You may have hit on the real problems here Bruce. I think that I'm reluctant to make too much of it because if I do, I'll probably lose the ACC people that I do have and I won't be able to get anybody to replace them. I've been on the Board for three years (since turnover from the developer) and one of my goals has been to get homeowner committees established. Unfortunately when the two making the complaint were on the Board, they blocked my attempts to get homeowner committees going, claiming that the Board is responsible for everything. But then they didn't run in the last election because they said that being on the Board was too much work. To be fair, I didn't run either, but when one of the new members had to resign, I was asked to come back.

Frankly, this whole blow-up couldn't have come at a worse time for me. I'm also involved with some other organizations that are having events right now. Between working on those events and my regular job, I haven't been able to put the time into this that it needs. On the other hand, I think the timeline has been unreasonably accelerated by those two. The first message that brought it to our attention was sent last Friday, and on Monday they started demanding to review all ACC requests since the first of the year. They wanted the requests to be delivered to them before the Board meeting on Wednesday, and were royally P.O.d when they weren't ready. I told them that they were free to go in to the M.C. office and review them.

I think the idea of the letter to the owner may be the way to go. Inform them that the shed in not in compliance and let them know what would be needed to bring it into compliance (in this case, just add shingles to the roof). Since they did get approval (even though it was incorrect), we can't really force them to bring it into compliance, but we can tell them that if any changes are done in the future that it must be brought into compliance at that time. In addition, if they sell the property, the shed must go with them.

Dwight, unfortunately such things happen with volunteer help and even sometimes with professional guidance. I would handle this by:
1) thank the complaintants for bringing this matter to the attention of the Board;
2) advise them that the ACC approved the request and therefore no further action will be taken;
3) have the Board and ACC members review all ACC policies and procedures to prevent similar occurances in the future.

Variances are normally allowed by the CC&Rs when justified.
Plus the Board needs to use good business judgement in making their decisions; for this case no action is the best decision IMO.

Bruce,
What can the Board do once the homeowner has proper approval and the shed is in place?

The options I envision are:
1) Request the owner change the shed to comply with the CC&R restrictions;
and if they say no (odds are near 100% IMO)

2) Ask permission for the HOA to replace with a compliant shed with the cost paid by the HOA;
and if they say no

3) Take the case to arbitration;
and if they say no

4) Take the case to court (their insurance company may not agree).
and what are the chances of the HOA losing in court? High probability IMO; and in CO probably pay all legal expenses for both parties.

5) The Board is responsible for making sound business decisions. If this case lost at court, what if a homeowner sued those Board members who made the poor decision? If the homeowner prevailed at court those Board members approving going to court may be held liable to pay all legal costs if their D&O insurance did not cover them. Would you take the risk of the potential of having to paying out of your own pocket?

So, as a Board member what action would you recommend? I stand by my answer to do nothing.

With regard to variances, they are allowed in many CC&Rs. With regard to our government, and particularly our courts, I shudder at some of the exceptions they have made. But to discuss this would take years.

Roger,

I do not agree that the board should do nothing. If you will read my later post, in it I said:

"I think that, at the very least, the board should pass a resolution censuring the ACC for having violated the CCRs in approving an exception. The resolution should further state that future violations of this nature will not be tolerated and that sterner measures could be taken. This should be followed up with a letter to the chairperson of the ACC, directed by the board and signed by the president, informing the ACC of the censure action, the nature of the violation and a copy of the relevant provision of the CCRs that has been violated. This places it on record, in the minutes, that there has been a violation and that other homeowners should not expect to be granted a similar exception in the future. This may help to ward off any claim of “well, they were allowed to do it” by a homeowner, since it has been established and acknowledged that this was clearly an error and that it will not be permitted to happen again."

Who is going to sue over doing that?

I would imagine it to be a world where Congress exempted themselves from complying with the laws they write for all other people, where you had to have the permission of the "board" in order to sue the board or redress a grievance, and where the president of the board could seize people and property without a warrant, by use of his own "security force", despite any laws to the contrary, and hold them indefinately without charges of any kind, or access to any legal aid or representation, and try them in a mock court where they had none of the rights granted to others by the rules of law that the board tossed out. I would imagine it the very same world where this board voted on issues and laws without bothering to read them.

I would say it is a world very much like we live in today.

Brian,

You said: "I would imagine it the very same world where this board voted on issues and laws without bothering to read them." Not only boards do this, our very own legislators do too. AZ had one of it's biggest fiascos when legislators voted for the alternative fuel bill several years ago. This legislation was sneaked thru by a strike-everything amendment and many of the legislators who voted in favor didn't even bother to read the new bill!! A strike-everything amendment strikes everything written in the original bill and replaces it with new language, oftentimes of a totally different subject than the original bill. This tactic is often used at the end of the session when the legislators are more concerned with shutting down and will oftentimes vote for anything just to be done with it.