ARB application not compliant

Hi, I am new here. I am on the Architectural Review Board for my neighborhood of 2,000+ units. Recently, we had an application for a shed approved and told the applicant it was approved. Come to find out, 2 adjacent/impacted homeowners were not notified of the application by the applicant. One homeowner lives directly behind the applicant, and the other next door to the applicant. The ARB volunteer didn't notice this during a review of the applicant's house during inspection for the application (not sure how this happened), and our in-house paid ARB administrator did not catch this either. Routinely, if a homeowner's signature has not been obtained by an applicant, the ARB administrator notifies the impacted adjacent property owner(s) via a letter and gives them 10 days to file any grievance. Now, we have one homeowner who has contacted the HOA stating they want a hearing since the shed will be up against their property line (and 10 feet from their deck and patio) and we have yet to hear from the other property owner. In the meantime, the applicant has an "approved application" from the HOA to proceed with the shed. The impacted homeowner, who was not notified of the application for the shed by the applicant or ARB administrator, is upset and is demanding a hearing. Meanwhile, what do we tell the applicant? The applicant obviously avoided obtaining the signatures of these 2 impacted property owners. Can we tell the applicant that her application is null/void since it was not filed properly, due to not having the correct signatures? Thank you for any help.

And just think, all this because the neighbor DID object! Makes me wonder how many other construction project slipped thru without noticing the neighbors. correctly.

There is no other choice than to place a hold on the entire project and have new hearings.

How did this happen? With PAID personnel, too!

Make sure procedures are tightened up.

Mary,
I agree with this idea that neighbors should not have control of what goes on to my lot. The ARC guidelines should be what has to be followed, not the whims of neighbors. I do agree that IF a lot owner is going to erect a structure that will cause an impact to the surrounding lots, then there is an issue. This is why guidelines have to be done with regards to neighboring parcels, taking into consideration the size of the parcels and what can fit without causing negative impacts on heighboring lots. Without written controls on structures being added to a parcel, Boards end up having to interpret what is acceptable or not and that is where it becomes an issue--or not.

The issue is that the neighbors were NEVER notified. According to the OP, that was what was required.

In our municipality, neighbors within 300 feet of a resident are notified about construction, wetland or woodlands impact and building permits applied for. Most time folks don't show up for the application process, but at least they were notified that work was going to be done.

A reasoned post, Robert. But the issue here comes down to the homeowner's ability to rely on the decision. It is also a question of materiality. An incorrect address, under most circumstances, is not material. But an mistaken approval letter is material, if the homeowner incurred expense by relying on the approval.

For instance, if I received such an approval letter, and then went out and purchased all the materials and could not return them, or could only return them for 80 percent of what I paid, then the homeowners association is liable for my loss. It would probably not matter to a judge that I failed to complete my application, if the association went ahead and approve it, incomplete as it was. It is the association's responsibility to ascertain that an application meets it approval standards, not the homeowner's.

The approval is, indeed, a legal document that the homeowner can reasonably expect to rely on.

Jen - you can tell the applicant to put the project on "hold" since the neighbors were not notified. (Board's fault)

Now that they have been notified, one neighbor wants a hearing. That troubles me because he is objecting about set-backs and location of something that has been approved by the board.

Does he have objection rights? Now, or in the past?

Thank you for your responses.

The applicant has been notified that there will be a hearing next week in regard to the application, as has all other parties. In the ARB standards it does state that consideration will be given to the lot configuration and the visual impact of the shed on the adjacent properties. This is at least one homeowner's issue. The shed will be located next to the property line, 4 feet from his patio and 8 feet from his screened-in deck. Each house is on 1/4 acre...and this homeowner's house sits far back on his lot due to the configuration (somewhat of a trapezoid -- the lot is wider toward the rear to accommodate the house). Homeowner states he will not argue they cannot have a shed, he objects to the location due to the lot configuration and the visual impact on his property (his house sits up higher than the applicant due to being on a hill and having a walk-out basement). Our members know the applicant will fight to have his shed kept in the original place. We are wondering if the other homeowner has a "right" to state the shed should be reconsidered to another portion of the applicant's lot due to the lot configuration and visual impact verbage in our standards. Interestingly enough, the HOA attorney says we cannot legally rescind the application and that it is legally binding, although it did not have all correct signatures on it, and recently we found out the diagram of the shed on the lot is not in the exact location where the applicant wants to place it. Obviously, this is the fault of our paid ARB/HOA staff for not reviewing this application before it was sent out approved.

You are exactly right, Robert. That is why a good attorney would suggest a settlement even before a court case is filed. The HOA is culpable here.

They do.

For example, we had basketball courts approved (before my time on any board, or living here) to be put in backyards (on 1/4 acre lots). Two homeowners submitted applications for basketball courts one the same day (they were friends who lived 5 houses from one another). One had a next door neighbor who asked for a hearing. The basketball court was approved at the hearing by the ARB. The neighbor appealed to the BOT. At the BOT meeting, the ARB ruling was overturned b/c of the "noisy neighbor". The neighbor did his homework (interviewed neighbors of people with basketball courts in back yards, stated it would effect his own property value, etc). So, yes, a neighbor can have in influence on the board's decision. But the decision about the shed has already been made (although with a flawed application, but it was approved, nonetheless). I know about the basketball court issue, b/c the previous owner of my house was the homeowner who was denied the court (thankfully for me, although I would not have bought a house with a huge slab of concrete on this small lot we have).

Jen,

I regretfully have to put on my lawyer hat here and caution you about posting certain information here. You wrote,

"Interestingly enough, the HOA attorney says we cannot legally rescind the application and that it is legally binding, although it did not have all correct signatures on it, and recently we found out the diagram of the shed on the lot is not in the exact location where the applicant wants to place it. Obviously, this is the fault of our paid ARB/HOA staff for not reviewing this application before it was sent out approved."

This could be privileged attorney-client information. And, because you posted it here, an opposing attorney in a lawsuit (if it is found) can use it as damning evidence against the homeowners association. You may be shooting the association in the foot without realizing what you are doing.

Please be careful about what you post. Discretion is the better approach until this entire issue is resolved.

100% agree with this sentiment.

In addition, either something is allowed for everyone or it shouldn't be allowed for anyone. The governing documents, including any Architectural Guidelines, should dictate what is permissible and what isn't. Leaving a project contingent on whether adjacent neighbors "approve" of it or not, is totally unfair and completely inconsistent.

What if a set of residents don't get along, for what ever reason? Should one neighbor have the ability to lord control over another's property?

It's a different story if something is in the governing documents as opposed to left up to the (arbitrary) whims of adjacent neighbors.

But, if that's what your docs say you need to do/have to get a project "approved," then so be it.

I'm not a big fan of altering the docs, but I think I would lead a committee to amend this portion of them.

PS: to Donna: regarding placement of something like a shed, that's where a properly trained Arch Approval Committee is worth its weight in gold.

We have often denied a shed placement because of its potential impact in a neighbor's use and enjoyment.

We approved the shed but ONLY if placed at a specific location that the Arch Committee has designated on the lot. One guy was not happy with that determination, but it was fair and consistent with the placement of other sheds in the neighborhood. Where he wanted to put it was very similar to the location in the original post.

So the Arch Committee, if diligent and sensitive to surrounding neighbor's use and enjoyment of their properties, can often work out an acceptable placement of a project such as this so that no one is unfairly impacted.

Jen,

My assn's CCRs state the following in regard to the Architectural Committee's rules: "The Architectural Committee may (but need not) from time to time adopt, amend and repeal rules. . .which shall serve as guidelines to be used by the committee in rendering its decisions."

If you have such a clause in your CCRs, then all the committee has to do is adopt a rule for this situation. No amendment to the CCRs is necessary.

You stated: "It is also not written anywhere that the HOA has to notify affected residents of an application." So, why does the committee do this? IMO, it's the committee's resp. to adopt rules and guidelines -- not the members. When the committee relys on the neighbor's consent, IMO, they are shirking their resp. to make a decision. What one neighbor thinks is OK, another might not. Oftentimes the neighbors are friends with the applicant and will agree to anything they want to do because of their friendship. On the other hand, the neighbors may not like the applicant and wouldn't agree to anything they may want to do. Suppose Applicant A's neighbors disapprove of his request and Applicant B's neighbors approve of his request, and both requests are for the same thing. If the committee relys on the neighbors to decide whether to approve or disapprove this could be construed as selective enforcement. Since your docs do not require the neighbor's approval the committee has no guideline or rule to back up their decision.

The procedure my A/C follows is that once the request has been approved a letter is sent to the h/o. The letter will state whether periodic inspections may be made during the construction and also states ". . .any additions, changes or deletions from the approved plan must be resubmitted to the A/C for a modified written approval prior to implementation. If the member does not follow these instructions the A/C has the power to issue a stop work order or a violation notice. Any deviation from the approved request can be considered the same as making an improvement w/o first getting approval.