Where should the association start in order to implement an effective architectural enforcement procedure?
Start by reviewing the CC&Rs. Many contain an application submission process, a decision-making process according to specific criteria including deadlines for action by the association, and even a construction- monitoring procedure with time limits for improvement completion. In addition, California law provides minimum steps for architectural review procedures (Civil Code §4765) and provides certain decision-making deadlines, with failure to meet those deadlines resulting in automatic application approval (e.g., Civil Code §714 on solar energy systems and Civil Code §4745 on electric vehicle charging stations).
If the governing documents require association approval before a physical change is made to a separate interest or the common area, the association must provide a fair, reasonable, and expeditious procedure for making its decision. The procedure shall provide prompt deadlines and the maximum time for response to an application. A decision on a proposed change must be made in good faith and not be unreasonable, arbitrary or capricious. The decision may not violate any governing provision of law.
A decision on a proposed change must be in writing. Thus, the architectural committee or board should take minutes of the meetings at which these decisions are made, noting reasons for application approval or denial. If a proposed change is disapproved, the written decision shall include a description of the procedure for reconsideration by the board. An applicant is entitled to reconsideration at an open meeting of the board.
An association must annually provide its members with notice of any requirements for association approval of physical changes to property. The notice must describe the types of changes that require association approval and shall include a copy of the procedure used to review and approve or disapprove a proposed change.
What is the best way to develop architectural guidelines?
First, include any “criteria” for approval specified in the CC&Rs. Second, cover as many of the major items as possible for which owners are likely to request approval. Applications for fences, patio covers, balcony improvements, decks, and landscaping are frequently encountered. Third, ensure that guidelines are easy to understand. Owners should be able to tell exactly what the application should include, what items are totally prohibited and what items may be approved if they meet specified criteria. Fourth, consider pre-approvals; that is, a list of improvements an owner can complete without applying for prior approval, such as painting a structure its original color or constructing a patio cover whose size, materials, design and color are all “pre-approved.”
What role should neighbors play in the approval process?
To avoid the anger of disgruntled neighbors, it is a good practice to require the notification of nearby owners when an application is submitted. Allow them to offer input; however, avoid permitting neighbor consent or apathy to result in automatic approval or disapproval. Owners should be told on the application form that neighbor input is merely “information” used in the application consideration process.
Can approvals be given orally or informally?
Avoid a procedure which permits any form of approval other than written approval after a vote of the entire committee or the board. One court decision upheld the oral approval of only one committee member because the owner relied upon it, believing it represented the committee’s decision, and proceeded to build the improvement. Guidelines should specify that oral approvals are invalid and that the only effective approval is the one on the authorized form and/or otherwise issued in writing by the association after the above-described vote.
How much subjectivity can go into architectural decisions?
Many architectural decisions are inherently subjective, yet will be enforced. The key is having “criteria” such as “harmony with the architectural scheme of the community.” Always develop general criteria used or referred to in making a subjective decision. Many CC&Rs already contain such general criteria. When this occurs, it is a good idea to repeat those criteria in the guidelines.
Can variances or exceptions to the architectural guidelines be granted?
Generally, yes, if there is authority for a variance in the CC&Rs. However, variances should be used very judiciously, only in rare instances when it is necessary (for example, to make use of a unique lot and where there is minimal or no effect on other owners). If you contemplate variances, at least some reference to them should also be made in the guidelines. The idea behind using variances is to accomplish a desired result (e.g., aesthetic uniformity) despite a technical violation of the guidelines. In other words, you are adhering to the “spirit” rather than the “letter” of the guidelines. One effective tool is the recorded Restrictive Use and Indemnity Agreement whereby the owner agrees to defend and indemnify the association if another owner complains or files a lawsuit because a violation is allowed to exist. This type of agreement can also be used to limit the duration of time a structure can be kept and to require the owner to maintain it.
What should be done if an owner is ignoring the architectural procedures?
This depends on the situation. If the committee or the board seeks to compel the owner to take some particular action, a hearing should be held before the association acts further. If an architectural improvement is already in place, the committee should rule upon it as if an application were filed, as required by the court case of Ironwood Owners Ass’n. IX v. Solomon. If the owner is in the process of constructing something clearly prohibited, immediately consult legal counsel about seeking a restraining order. Undue delay when construction is underway can result in a court refusing to issue an order prohibiting further construction.
How can the association rule upon an application and avoid setting precedents?
If there is nothing unique about a particular situation, it may well be a precedent to rule on it differently. Accordingly, keep this in mind when ruling upon applications, including those for variances. If there is a unique situation or a variance is granted, document in writing the reason why an approval was issued. Doing so will help you appropriately respond if other owners ask for the same approval, but the association desires to limit its decision to the unique situation of one owner.
What is the best way to ensure success in the architectural approval and enforcement process?
First, ensure that every step of the process is documented in writing. Second, be fair and develop architectural guidelines responsive to community needs. Third, maintain perspective on the entire community rather than what one particular owner is doing. Fourth, be mindful of the fact that architectural disputes can end up in mediation, arbitration or court, and that you may be asked to explain everything the association has done. The best way to do this is through written documentation. An unbiased, documentation-oriented approach to architectural enforcement has consistently proven most effective.