Architectural Control needs clarification

We had an HOA BOD meeting last night and met with the Architectural Review Committee about the following outstanding issue:

. Homeowner erected a railing next to their sidewalk that is not attached to the porch railing (it starts 10-12 ft away)

. ARC Request form was not submitted until after the railing was built

. ARC disapproved the railing on the premise that it looks unfinished and does not fit in with the architecture of the neighborhood

. The homeowner is saying that the ARC should not have to approve since it cost under $1000.

We are a 48-home neighborhood and have very litle funds for legal interpretation. Can someone try to clarify the following passages in our Declaration of Covenants and Restrictions? Sections (a) and (b) seem to clash a little; however, the BOD feels that the ARC has final say regardless and agree with their decision. Any comments/discussion is appreciated.

Article IX

Construction of Improvements and Architectural Control

Section 1. Construction of Improvements

(a) Notwithstanding anything contained within this Declaration to the contrary, no Owner shall undertake on any Home Site (i) the location of any completed Improvement or any construction of any Improvement, which shall include in addition to the actual erection of a dwelling and its appurtenances, any staking, clearing, excavation, grading or other site work, (ii) any modification, change or alteration of any Home Site or dwelling thereon, whether functional or decorative, unless and until the type and size thereof, and site plans, showing the proposed location of the dwelling, garage, and driveways upon the Home Site and final grades and landscaping plans, shall have been approved in writing by the Architectural Review Committee, and copies of said approved plans, specifications and details shall have been filed with said Architectural Review Committee. Generally all Improvements must replicate the design and finishes of the dwellings of (the neighborhood). The Architectural Review Committee may refuse approval of plans, location, exterior color or finish or specifications for any reason, including purely aesthetic reasons, which in the sole discretion of the Architectural Review Committee shall be deemed sufficient.

(b) The term “Improvements (s)” as used throughout this Declaration shall mean and include all buildings, storage sheds or areas, roofed structures, parking areas, loading areas, trackage, fences, walls, hedges, mass plantings, poles, driveways, ponds, lakes, changes in grade or slope, site preparation, swimming pools, tennis courts, signs, exterior illumination, changes in any exterior color or shape and any new exterior constructed or exterior improvement exceeding $1,000.00 in cost which may not be included in any of the foregoing. The definition of Improvements (s) does not include garden shrub or tree replacement or any other replacement or repair of any magnitude which ordinarily would be expensed in accounting practice and which does not change exterior colors or exterior appearances. The definition of Improvements does include both original Improvements and all later changes and repairs to Improvements.

I tried to understand it by listing the paragraph, but wasn't too successful.

b) Improvements shall mean and include all

buildings,

storage sheds or areas,

roofed structures,

parking areas,

loading areas,

trackage,

fences,

walls,

hedges,

mass plantings,

poles,

driveways,

ponds,

lakes,

changes in grade or slope,

site prep,

swimming pools,

tennis courts,

signs,

exterior illumination,

changes in any exterior color or shape

(and)

any new exterior constructed or exterior improvement exceeding $1000 in cost which may not be included in any of the foregoing.

What would this railing be called according to the above list? (I would say fence since it is not attached to the porch railing)

Key word is "Notwithstanding" in section (a) meaning nothing in the Declaration can oppose section (a) that any modification, change or alteration of any Home Site or dwelling thereon, whether functional or decorative, unless and until the type and size thereof...requires approval.

So while the railing may not be specifically called out as an "Improvement", said railing is a modification. However since the railing is not attached it can be considered a fence if you're really looking to categorize it.

To resolve this I would strongly consider setting aside the fact that no approval was sought prior to the modification and consider if the ARC would have approved the modification. It would be less costly for the association to require the owner complete the proper paperwork as a formality and record keeping and simply move on. But require receipts on contractor letterhead and consider revising the Article.

I don't know why there is any monetary threshold ($1,000) in the language and would seriously consider having that Article amended because there a lot of low impact and low cost modifications that can destroy the look of a community.

I agree with you that the $1000 minimum applies to "other" improvements.

The "rail" is clearly at least 2 posts.

The good thing is that your board most likely has the ability through the documents to make judgment calls on ambiguous language and "define" what you accept it to mean.

Which means if the resident doesn't like the idea that you have disqualified his "posts" that connect with a rail and require it to be moved, he can decide if it is going to be worth it to him to refuse.

But, too, the real key is, IF the request had come prior to building, would the item have been approved? If not, why not?

But can you say that after a Bloody Mary?