Has anyones Board overturned an ARC decision?

Started by CharlieM • 10 replies • 1972 views

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CharlieM (California)
Posts: 42

Posted:

This will give me a feel for an issue our Board is facing and it would help getting other experiences.

If there is a history in your HOA of a BOD overturning a decision by the ARC, could you please tell the circumstances behind that decision.

Thanks to all the good people of HOATalk for your considerations.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Our board has never overturned an ARC committee decision.

The guidelines for projects are very clear.

If the project is outside the guidelines, the ARC is perfectly capable of determining that.

The board would not presume to know better than the ARC does how to do its job.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Charlie,

Please fill us in more. What was the decision for the ARC application and why is it being overturned? How and who overturned it and do your ARC guidelines allow for an appeal?

Mine were written that in the event of a denial on an application, the applicant has 30 days to appeal the decision to the BOD. This is why we have written that NO Board member may sit on the ARC in the event of an application denial, the Board member would have 2 votes against the applicant. One on the ARC committee and one on the Board. I think that this is called double jeopardy.

CharlieM (California)
Posts: 42

Posted:

That is a good point Donna. Fortunately that is not a problem in this case.

We have large lots with hilly open space and an owner wants to fence their 1.75 acre lot. Our guidelines clearly state that the ARC has discretion over placements of the fences in our community. It would be the only home like theirs to have a fence that would be highly visible to the community possibly affecting the open feel that exists today. The ARC does not have a problem with a fence but not that large of one. So they have denied the application and the owners are not willing to compromise one inch. So that has something to do with a denial. And the owner has appealed to the Board. The Board has decided that there is no valid reason to have the fence in the location they request and it would greatly affect the feel of their 5 surrounding neighbors to place the fence around the perimeter of their lot.

We are working on to see if there are any laws the prohibit the HOA from denying the owner of this request but the simple logic is why would this be in the documents with the fence placement discretion if there was a law? Not taking into account that laws do change of course.

So that is the story and this has been quite the issue that has our ARC and Board kind of at each other right now. Our property manager is obviously unhappy about the amount of work this has created also. And to tell you the truth, I don't blame her.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Charlie,

To find any fence laws or codes, it will be within your municipality or County. That really is a whole lot of fence to pay for especially if it is nice fencing. I don't see where the ARC and Board are at each other as you said because they both don't like the idea of that amount of fencing. Clear that up please.

The Board will have the final say on this until the owner decides to get a legal opinion, which I bet he will do. The law may be on the HOAs side unless your documents are not clearly stated what constitutes an acceptable fence.

Where the owner may have his loophole is that your documents state that "Our guidelines clearly state that the ARC has discretion over placements of the fences in our community. " The key word here is "DISCRETION" That is where all documents fail to support a covenant with definitive wording. You may have to bite the bullet and let him put up his fence.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Charlie,

If the ARC says no, and the BOD sees no reason to overturn the ARC decision (and I'd say for good reason to keep the "open" atmosphere), and both the ARC and BOD are exercising powers granted in the docs, I'd also say that's the end of the story. The HO/fencer should accept the call as I doubt there're any reasons that could overcome the No vote.

MaryA1 (Arizona)
Posts: 7,043

Posted:

If the h/o doesn't like it, they can always take the issue to court and take their chances there. When AZ had the OAH to settle disputes there were a few cases that were decided on the side of the h/o, so one never knows how a court case could come out.

CharlieM (California)
Posts: 42

Posted:

Thanks for the replies everyone. This does help.

Donna,

The ARC has denied the request and some on the Board doesn't think its a bad idea. The issue is some on the board are assuming that the local laws would not allow the HOA to deny this homeowner a fence. We are in the process of having this interpreted by an attorney.

We have a very qualified ARC that exists of a reputable Landscape designer, a reputable home designer and a long time experienced custom home community developer. I am of the school of thought than unless this ARC acted out side of the Guidelines, did not follow the general standard established in our community, or didn't follow some other rules considering landscaping, then unless the owner has a compelling reason to go against these same standards and Guidelines, then the appeal should be denied.

Our guidelines are specific about the vistas and openness of our community and that the ARC will take these into consideration in regards to the location of fences. The word "discretion" was not part of documents, just my explanation of what I think they represent.

Thanks again.

JeffD4 (Texas)
Posts: 9

Posted:

This is a difficult situation ,our docs allow for a variance request to the entire membership after a denial (disapproval).Simple majority wins a variance vote, thus the rules can be "bent" to suit the wants of the entire memberships particular view of each specific variance request. Takes the power away from the BOD and gives ulimate authority to the members.It has worked marvelously(SO FAR), the BOD is keeping our fingers crossed.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Charlie,

If your city/county code allows fences that does not mean your HOA cannot prohibit them. However, if the city/county code explicitly says fences cannot be prohibited then the HOA cannot prohibit them -- I would be very surprised that your city/county code reads this way.

CharlieM (California)
Posts: 42

Posted:

Mary,

I agree with you. With some effort searching on the web, there is nothing to be found.

To note, its not that a fence would not be allowed. The standard is set more or less of a maximum of one third of the size these members are requesting. All lots with fences have a reasonable landscape design to the fence. The size an magnitude of this proposed fence makes a reasonable landscape design impossible and the members are not willing to have any landscape design. Of course they are threatening a lawsuit that, in my opinion, has some board members hesitant to deny their appeal. It doesn't help that our property manager is obvious of her opinion that we do not want this to go to a lawsuit. To me irregardless of who is right and wrong.

When trying to rationalize with these owners, they appear that they are in a battle of control because of how unreasonable they have been through this whole process. I have found that some people just are not happy living within the HOA and these members have had problems in the past with our HOA. Problems not related to this fence proposal and the ARC.

Thanks again for the responses.

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