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Subject: Can Board Rescind a Two Year Old ARC Approval?
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SimonW
(Texas)

Posts:11


04/16/2018 11:26 AM  
Two years ago, HO applied for and received from the Architectural Review Committee (i) written approval to build a chicken coop; and, (ii) a written waiver of the HOA's poultry restriction. In reliance on the ARC's approval to build a coop and the ARC's waiver of the HOA's poultry restriction, the HO built a coop and now keeps chickens.

Approximately two years after the HO acted on the ARC's approval and waiver, the HOA Board sent a letter to the HO that acknowledged the ARC had granted (i) approval to have a chicken coop; and, (ii) acknowledged the ARC granted approval on an exception to the use restrictions with a waiver of the poultry restriction. The letter noted that the ARC did not follow the standard practice of submitting the forms to the HOA management company. The letter noted that neither the HOA Board nor the HOA management company received copies of the forms and formal approvals until after a neighborhood vote that occurred more than one year after the ARC approval and waiver. The letter stated that the Board would like to resolve this issue without the cost and time of further action and further stated that if the issue is not resolved by a certain date, the HOA may take legal action.

Note 1: The neighborhood vote did not change the CC&Rs nor did it amend the By Laws.
Note 2: The CC&Rs are largely silent on property use restrictions.
Note 3: Separate and apart from the Declaration of CC&Rs, Use Restrictions are imposed on the property.
Note 4: The same document that imposes the Use Restrictions also:
Note 4a: Creates the Architectural Review Committee (ARC);
Note 4b: States that the ARC must approve in writing any and all improvements to any lot prior to the commencement of construction;
Note 4c: States that if the plans are approved by the ARC, one complete set of plans will be retained by the ARC and the other set will be marked "approved" and returned to the HO; and,
Note 4d: States that the ARC has the authority to approve, in writing, exceptions to the Use Restrictions.
Note 5: The HO is in compliance with city code pertaining to poultry.

In a discussion with the Board, the HO was told that the Board believes the ARC acted wrongly and the Board wants to 'undo' the wrong. Given that the ARC has authority to grant and given that the HO properly obtained a written approval and waiver, does the Board have any standing? What are the possible repercussions of the HO ignoring the Board's letter? What are the possible repercussions of the Board pursuing a legal action?
TimB4
(Virginia)

Posts:16050


04/16/2018 11:35 AM  
Can they rescind?
Yes. However, it may open up legal issues if the member desires to take that course.

The member can fight the issue but if the Board isn't listening, they should get an attorney.

The member, who acted in good faith and followed procedure, would be entitled to damages -

The cost of the chicken coop less prorated use
The cost to remove the coop
The cost/loss of the chickens/eggs
The cost to restore the property to what it was
Legal costs (can vary by State)

Keep in mind, legal action may be required to be paid for the damages.
CjC
(Maryland)

Posts:138


04/16/2018 11:51 AM  
We had an HO apply for and receive permission for a concrete patio. That became a huge disagreement about a side yard patio with a neighbor. We had many months of vicious meeting about it and in the end the board approached the homeowner and said they weren't sure they should have approved it. The HO was upset about how much this had split the community and the HOA offered to remove it since they had been the ones to approve it. HO was made whole and neighbors got along after that.
SimonW
(Texas)

Posts:11


04/16/2018 11:52 AM  
Tim - Thank you for your quick reply!

Can you kindly elaborate on the following -- What legal grounds does a HOA Board have to rescind the ARC's approval/waiver given that the very same document that created the Use Restrictions/ARC also vested in the ARC the authority to approve exception to the rules?
SimonW
(Texas)

Posts:11


04/16/2018 11:58 AM  
"HO was made whole and neighbors got along after that."

In this case, the HO fears that the HOA will harbor ill-will regardless of the outcome ... ill-will for being the recipient of HOA maintenance funds in the 'make whole process' or ill-will for causing the HOA to expend legal in the first place.

Does the Board not have the obligation to stand up for the HO who properly received approval prior to construction and who properly received the waiver prior to keeping the poultry?
DouglasM6
(Arizona)

Posts:724


04/16/2018 12:11 PM  
ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD.

Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?

The fact that the BOD has waited two years to enforce/address this may be advantageous for the HO. If I were the HO I would seek the advice of an attorney.
AugustinD


Posts:1222


04/16/2018 12:35 PM  
Posted By SimonW on 04/16/2018 11:26 AM
In a discussion with the Board, the HO was told that the Board believes the ARC acted wrongly and the Board wants to 'undo' the wrong. Given that the ARC has authority to grant and given that the HO properly obtained a written approval and waiver, does the Board have any standing? What are the possible repercussions of the HO ignoring the Board's letter? What are the possible repercussions of the Board pursuing a legal action?


-- I do not think a court would find in favor of the HOA.

-- I advise the homeowner to write the Board by certified mail; state that he or she properly received the ARC's and so HOA's approval; state that he or she has expended considerable money on the chickens and coop; and state that he or she will continue to maintain the chickens and coop.

-- If I were the homeowner, and did not have a lot of money to spend, I would not hire an attorney until the Board took me to court. If I had money to spare, before then, I might hire an attorney just to get the HOA off my back.

-- If the homeowner wants to minimize ill feelings, and is willing to compromise, then talks can begin. One compromise might be that the homeowner will not replace chickens that die, and that after all the chickens have gone, the HOA will pay for the removal of the coop and $_____ for giving up the partial loss of enjoyment of his or her home.

I am sorry for the nightmare the homeowner is going through. It is way more common than the average joe or jane thinks.
BenA2
(Texas)

Posts:531


04/16/2018 1:34 PM  
I don't think the board has any authority to rescind ARC approval unless your CC&Rs give them that authority. However, unless your CC&Rs give the ARC authority to allow a variance, if the approval is granted for something that violates the CC&R, it would be invalid. The CC&Rs are a contract between you and all of the other homeowners in your association and the ARC cannot waive the other owners' rights to enforce restrictions. So, if the chickens violate the CC&Rs, a waiver from the ARC cannot change that and usually anyone in the association, including the board, can enforce the CC&Rs.

I don't think this is settled law in Texas (based on conversations with our attorney). In fact he has advised us that we could allow variances if we have a good reason and it doesn't affect other owners. He was specifically talking about encroaching on an easement when there was no other practical way to build a house.


If I understand you correctly though, your CC&Rs do not restrict chickens, it is some other document. If that document is not part of the covenants/CC&Rs, then it cannot impose restrictions on your property. Whether or not it is a covenant might be a question for an attorney. I don't know of anything preventing a developer from filing two separate documents that are both covenants.

There have been many cases where HOAs try to correct lacking CC&Rs or ambiguous CC&rS by adding restrictions to rules or guidelines, which is not valid. In Texas, the rule of law is that if it is not in the CC&Rs or the CC&Rs are ambiguous, the court must rule in favor of the free use of land.

TimB4
(Virginia)

Posts:16050


04/16/2018 2:10 PM  
Simon,

I know of an HOA in VA that argued an approval didn't conform with the aesthetics of the development. They won in court.

That said, the fact that your governing documents grant the Committee to waive covenants would be a big hole in the Associations argument. They even sent a letter that the Committee approved everything, hence they acknowledge the approval. The fact that the Committee failed to follow internal procedures for informing the MC/Board is not relevant (in my eyes).

That said, if the Board isn't listening or is choosing to make an example, this issue will head for the courts and anytime you are in court it is 50/50.
BenA2
(Texas)

Posts:531


04/16/2018 2:25 PM  
Posted By TimB4 on 04/16/2018 2:10 PM
Simon,

I know of an HOA in VA . . .




Texas really is like a whole other country
TimB4
(Virginia)

Posts:16050


04/16/2018 4:02 PM  
Ben,

I agree. Before learning of that Association, I would have said there was no way in H___ that an Association would win trying to rescind a properly approved request.

However, the question was on what grounds might the Association have a case.
Therefore, I provided the argument used by that Association.
SimonW
(Texas)

Posts:11


04/16/2018 4:31 PM  
"ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD."

An amendment to the bylaws states that the activities of the ARC shall be governed by the provisions of the Use Restrictions. The same amendment states that the Board shall appoint a Chairperson of the ARC who shall preside at all ARC meetings and shall see that all orders and resolutions of the ARC are carried into effect. The same amendment states that the ARC may from time to time establish guidelines for interpretation of the specific requirements of the various Use Restrictions. Recall that the Use Restrictions document has an Exceptions section that states "The ARC has the authority to approve, in writing, exceptions to the above rules." It appears that the ARC clearly has authority to approve exceptions.

"Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?"

The Use Restrictions language reads as follows: "Livestock and Poultry. No animals, livestock, or poultry of any kind may be raised, kept, or bred on any Lot, except that dogs, cats, and other household pets may be kept, provided that they are not kept, bred, or maintained for any commercial purpose." The description of the improvement for which the HO requested approval was "Other" with a detail of work that reads "Wood, steel, glass, and wire chicken coop." Moreover, each member of the ARC signed and dated a letter with language reading as follows: "Pursuant to Section __ of the Use Restrictions for __, the undersigned ARC hereby approves, as of the date above, an exception to Section __ of the Use Restrictions for __. Specifically, the ARC grans a waiver of the poultry restriction for __ Block __ Lot __, provided however, that no rooster may be raised or kept."
SimonW
(Texas)

Posts:11


04/16/2018 5:16 PM  
"I don't think the board has any authority to rescind ARC approval unless your CC&Rs give them that authority. However, unless your CC&Rs give the ARC authority to allow a variance, if the approval is granted for something that violates the CC&R, it would be invalid."

There is nothing in the CC&Rs that give them the authority to rescind the ARC approval. Rather, the Amendment to the By Laws and the Use Restrictions state that the ARC must approve in writing any and all improvements to any Lot prior to the commencement of construction of such improvements. Additionally, the ARC may, among other things, interpret Use Restrictions, and approve, in writing, exceptions to the rules.

Inasmuch as the each member of the ARC not only granted written approval for the improvement (coop) prior to the HO's commencement of construction but also that each member of the ARC signed a letter specifically granted a "waiver of the poultry restriction", isn't such approval and exception binding on the HOA? Else, what would be the ARC's raison d'être?
JohnC46
(South Carolina)

Posts:7871


04/16/2018 5:27 PM  
Simon

I say an ARC is appointed by and serves at the pleasure of the BOD. I also say a BOD can override an ARC decision. That said, overriding a decision two years later is unacceptable and I would legally challenge it.
SimonW
(Texas)

Posts:11


04/16/2018 6:20 PM  
John,

"I say an ARC is appointed by and serves at the pleasure of the BOD." The Amendment to the Bylaws states that the members of the ARC shall be elected at the annual meeting of the members to a term of two years or until his or her death, resignation or removal by the BOD.

"I also say a BOD can override an ARC decision." That would make total sense prior to commencement of construction, partial sense subsequent to commencement of construction, and little sense after completion of construction.

"That said, overriding a decision two years later is unacceptable and I would legally challenge it." The HO would concur.
SimonW
(Texas)

Posts:11


04/16/2018 6:23 PM  
"... and anytime you are in court it is 50/50." Is it really 50/50? Shouldn't the probability reflect the merits of each party's case?
TimB4
(Virginia)

Posts:16050


04/16/2018 7:18 PM  
Posted By SimonW on 04/16/2018 6:23 PM
"... and anytime you are in court it is 50/50." Is it really 50/50? Shouldn't the probability reflect the merits of each party's case?




Yes the should.

However, human factors can influence the effectiveness of those merits.

See:

Influences on Judicial Decision - Making in Federal and Bankruptcy Courts

Extraneous factors in judicial decisions

What factors influence court decisions?


AugustinD


Posts:1222


04/16/2018 8:29 PM  
Posted By SimonW on 04/16/2018 6:23 PM
"... and anytime you are in court it is 50/50." Is it really 50/50? Shouldn't the probability reflect the merits of each party's case?


Until you talk to an attorney, I think attaching any odds to whether you would win in court is inappropriate.
BenA2
(Texas)

Posts:531


04/16/2018 8:35 PM  
Posted By SimonW on 04/16/2018 5:16 PM
"I don't think the board has any authority to rescind ARC approval unless your CC&Rs give them that authority. However, unless your CC&Rs give the ARC authority to allow a variance, if the approval is granted for something that violates the CC&R, it would be invalid."

There is nothing in the CC&Rs that give them the authority to rescind the ARC approval. Rather, the Amendment to the By Laws and the Use Restrictions state that the ARC must approve in writing any and all improvements to any Lot prior to the commencement of construction of such improvements. Additionally, the ARC may, among other things, interpret Use Restrictions, and approve, in writing, exceptions to the rules.

Inasmuch as the each member of the ARC not only granted written approval for the improvement (coop) prior to the HO's commencement of construction but also that each member of the ARC signed a letter specifically granted a "waiver of the poultry restriction", isn't such approval and exception binding on the HOA? Else, what would be the ARC's raison d'être?



I agree the ARC approval would be binding based on the fact you said there is an amendment to the restrictions giving them authority to make exceptions. Even if the ARC didn't explicitly have the authority to make exceptions, I doubt many judges would rule in favor of the HOA under these circumstances.
BenA2
(Texas)

Posts:531


04/16/2018 8:57 PM  
Posted By TimB4 on 04/16/2018 7:18 PM
Posted By SimonW on 04/16/2018 6:23 PM
"... and anytime you are in court it is 50/50." Is it really 50/50? Shouldn't the probability reflect the merits of each party's case?




Yes the should.

However, human factors can influence the effectiveness of those merits.

See:

Influences on Judicial Decision - Making in Federal and Bankruptcy Courts

Extraneous factors in judicial decisions

What factors influence court decisions?





I think you're right. It may not be 50/50 (not that you meant that literally) but it can always go either way.
BenA2
(Texas)

Posts:531


04/16/2018 9:03 PM  
Posted By DouglasM6 on 04/16/2018 12:11 PM
ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD.

Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?

The fact that the BOD has waited two years to enforce/address this may be advantageous for the HO. If I were the HO I would seek the advice of an attorney.



I don't think it's unusual for ARCs to be responsible for enforcing all covenants. Ours is.
JanetB2
(Colorado)

Posts:4166


04/16/2018 11:05 PM  
The Owner was given discretionary authority to have the chicken coop and was given in writing. If the HOA later tries to rescind I would contend the HOA has a very high probability of loosing. The TX statutes note under http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.202.htm :

Sec. 202.004. ENFORCEMENT OF RESTRICTIVE COVENANTS. (a) An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.

If many individuals as you have noted signed the document giving authority then the Owner had reasonable reliance on their request being granted. It is not like just one individuals gave permission just because for example they were a good friend of the owner.
DouglasM6
(Arizona)

Posts:724


04/17/2018 10:34 AM  
Posted By BenA2 on 04/16/2018 9:03 PM
Posted By DouglasM6 on 04/16/2018 12:11 PM
ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD.

Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?

The fact that the BOD has waited two years to enforce/address this may be advantageous for the HO. If I were the HO I would seek the advice of an attorney.



I don't think it's unusual for ARCs to be responsible for enforcing all covenants. Ours is.




I agree. But does your ARC have the authority to grant variances of the covenants?
JohnC46
(South Carolina)

Posts:7871


04/17/2018 4:47 PM  
Posted By BenA2 on 04/16/2018 9:03 PM
Posted By DouglasM6 on 04/16/2018 12:11 PM
ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD.

Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?

The fact that the BOD has waited two years to enforce/address this may be advantageous for the HO. If I were the HO I would seek the advice of an attorney.



I don't think it's unusual for ARCs to be responsible for enforcing all covenants. Ours is.




And I think it is unusual for an ARC to be given that power.
SimonW
(Texas)

Posts:11


04/17/2018 5:22 PM  
Posted By DouglasM6 on 04/17/2018 10:34 AM
Posted By BenA2 on 04/16/2018 9:03 PM
Posted By DouglasM6 on 04/16/2018 12:11 PM
ARC's are normally involved in the building of the structures. The part of this incident that I'm having trouble understanding is the ARC granting a variance in the covenant. That should be done by the BOD, and only the BOD.

Does the language specifically say "chickens" or "poultry"??? Or does it say "livestock"?

The fact that the BOD has waited two years to enforce/address this may be advantageous for the HO. If I were the HO I would seek the advice of an attorney.



I don't think it's unusual for ARCs to be responsible for enforcing all covenants. Ours is.




I agree. But does your ARC have the authority to grant variances of the covenants?




In this case, the ARC has the authority to interpret and/or grant exceptions to the Use Restrictions and that is what they did.
DouglasM6
(Arizona)

Posts:724


04/17/2018 5:30 PM  
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.
JanetB2
(Colorado)

Posts:4166


04/18/2018 11:34 AM  
Posted By DouglasM6 on 04/17/2018 5:30 PM
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.


It will not end up in a court battle ... unless the HOA removes the prior approval already given to the Owner in writing. It would be foolish for the HOA to take on a pissed off homeowner in a Court battle, who has received permission and spent money based on permission granted after they followed their own rules requesting.
DouglasM6
(Arizona)

Posts:724


04/18/2018 12:43 PM  
Posted By JanetB2 on 04/18/2018 11:34 AM
Posted By DouglasM6 on 04/17/2018 5:30 PM
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.


It will not end up in a court battle ... unless the HOA removes the prior approval already given to the Owner in writing. It would be foolish for the HOA to take on a pissed off homeowner in a Court battle, who has received permission and spent money based on permission granted after they followed their own rules requesting.




Unless the approval was for the structure only. Which is kind of where I think this is going. "You can build the coop". Did the original request/approval actually allow the chickens or just the building of the structure?
DouglasM6
(Arizona)

Posts:724


04/18/2018 12:45 PM  
I reread the OP and it does say there was a waiver of the poultry restriction. So if the ARC has the authority to grant the waiver, the chickens will remain.
SimonW
(Texas)

Posts:11


04/18/2018 2:00 PM  
Posted By DouglasM6 on 04/18/2018 12:43 PM
Posted By JanetB2 on 04/18/2018 11:34 AM
Posted By DouglasM6 on 04/17/2018 5:30 PM
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.


It will not end up in a court battle ... unless the HOA removes the prior approval already given to the Owner in writing. It would be foolish for the HOA to take on a pissed off homeowner in a Court battle, who has received permission and spent money based on permission granted after they followed their own rules requesting.




Unless the approval was for the structure only. Which is kind of where I think this is going. "You can build the coop". Did the original request/approval actually allow the chickens or just the building of the structure?





The ARC unanimously approved the request for the improvement (the coop). The ARC also unanimously signed a letter providing exception to the poultry use restriction (granted waiver allowing HO to keep poultry).
JohnC46
(South Carolina)

Posts:7871


04/18/2018 7:08 PM  
Posted By SimonW on 04/18/2018 2:00 PM
Posted By DouglasM6 on 04/18/2018 12:43 PM
Posted By JanetB2 on 04/18/2018 11:34 AM
Posted By DouglasM6 on 04/17/2018 5:30 PM
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.


It will not end up in a court battle ... unless the HOA removes the prior approval already given to the Owner in writing. It would be foolish for the HOA to take on a pissed off homeowner in a Court battle, who has received permission and spent money based on permission granted after they followed their own rules requesting.




Unless the approval was for the structure only. Which is kind of where I think this is going. "You can build the coop". Did the original request/approval actually allow the chickens or just the building of the structure?





The ARC unanimously approved the request for the improvement (the coop). The ARC also unanimously signed a letter providing exception to the poultry use restriction (granted waiver allowing HO to keep poultry).




I have a problem with this. The ARC controlling architectural things is one issue. I say the ability to override other Covenants such as no poultry is outside their jurisdiction. Next they will be saying they have the authority to fire/hire a PM.

BenA2
(Texas)

Posts:531


04/18/2018 7:53 PM  
Posted By JohnC46 on 04/18/2018 7:08 PM
Posted By SimonW on 04/18/2018 2:00 PM

I have a problem with this. The ARC controlling architectural things is one issue. I say the ability to override other Covenants such as no poultry is outside their jurisdiction. Next they will be saying they have the authority to fire/hire a PM.




I don't think the fact that they are called an ARCHITECTURAL Review Committee limits their jurisdiction. Ours is responsible for enforcing all restrictions, from new homes to lawns that are not mowed. I don't think that is uncommon.
BenA2
(Texas)

Posts:531


04/18/2018 7:58 PM  
Posted By BenA2 on 04/18/2018 7:53 PM
Posted By JohnC46 on 04/18/2018 7:08 PM
Posted By SimonW on 04/18/2018 2:00 PM

I have a problem with this. The ARC controlling architectural things is one issue. I say the ability to override other Covenants such as no poultry is outside their jurisdiction. Next they will be saying they have the authority to fire/hire a PM.







The OP also said that the ARC does have the authority to make exceptions. It may not be what we are used to but they have to follow their own governing documents.
JanetB2
(Colorado)

Posts:4166


04/18/2018 11:04 PM  
Posted By JohnC46 on 04/18/2018 7:08 PM
Posted By SimonW on 04/18/2018 2:00 PM
Posted By DouglasM6 on 04/18/2018 12:43 PM
Posted By JanetB2 on 04/18/2018 11:34 AM
Posted By DouglasM6 on 04/17/2018 5:30 PM
I bet there's something that is missing or been misinterpreted in all of this. Use restrictions may be referring to rules and regulations. I can definitely see this one going a few rounds in a court battle.


It will not end up in a court battle ... unless the HOA removes the prior approval already given to the Owner in writing. It would be foolish for the HOA to take on a pissed off homeowner in a Court battle, who has received permission and spent money based on permission granted after they followed their own rules requesting.




Unless the approval was for the structure only. Which is kind of where I think this is going. "You can build the coop". Did the original request/approval actually allow the chickens or just the building of the structure?





The ARC unanimously approved the request for the improvement (the coop). The ARC also unanimously signed a letter providing exception to the poultry use restriction (granted waiver allowing HO to keep poultry).




I have a problem with this. The ARC controlling architectural things is one issue. I say the ability to override other Covenants such as no poultry is outside their jurisdiction. Next they will be saying they have the authority to fire/hire a PM.



LOL ... NO ... they can just control the architectural issues ... NOT other BOD issues. My HOA is similar ...
JanetB2
(Colorado)

Posts:4166


04/18/2018 11:08 PM  
JohnC46 ... Whether or not to BUILD a chicken coup and allow chickens potentially is an ACC issue to be addressed. There is a huge difference between building a chicken coup (with regards to the ACC) and hiring a PM (a BOD responsibility).
SimonW
(Texas)

Posts:11


04/19/2018 8:11 AM  
Posted By BenA2 on 04/18/2018 7:58 PM
Posted By BenA2 on 04/18/2018 7:53 PM
Posted By JohnC46 on 04/18/2018 7:08 PM
Posted By SimonW on 04/18/2018 2:00 PM

I have a problem with this. The ARC controlling architectural things is one issue. I say the ability to override other Covenants such as no poultry is outside their jurisdiction. Next they will be saying they have the authority to fire/hire a PM.







The OP also said that the ARC does have the authority to make exceptions. It may not be what we are used to but they have to follow their own governing documents.




This issue has nothing to do with ARC hiring a PM. This issue only concerns the ARC's approval for the coop and the ARC's issuance of an exception to the no poultry rule.

The actual language in the the Use Restrictions document reads "EXCEPTIONS. The ARC has the authority to approve, in writing, exceptions to the above rules." The poultry restriction is only mentioned in the Use Restrictions document, accordingly it is clearly part of the "above rules". The ARC exercised their authority to grant the exception.
DouglasM6
(Arizona)

Posts:724


04/19/2018 9:46 AM  
Posted By BenA2 on 04/18/2018 7:53 PM


I don't think the fact that they are called an ARCHITECTURAL Review Committee limits their jurisdiction. Ours is responsible for enforcing all restrictions, from new homes to lawns that are not mowed. I don't think that is uncommon.





Enforcing restrictions and granting waivers to the restrictions is two completely different things.

I suggest having an attorney read the documents. If the CC&R's that are attached to the deed say the ARC can grant waivers, then it is so. But many times sentences and paragraphs can be translated into two meanings: The legal meaning and the "what I want" meaning.
SimonW
(Texas)

Posts:11


04/19/2018 10:26 AM  
Posted By DouglasM6 on 04/19/2018 9:46 AM
Posted By BenA2 on 04/18/2018 7:53 PM


I don't think the fact that they are called an ARCHITECTURAL Review Committee limits their jurisdiction. Ours is responsible for enforcing all restrictions, from new homes to lawns that are not mowed. I don't think that is uncommon.


Enforcing restrictions and granting waivers to the restrictions is two completely different things.

I suggest having an attorney read the documents. If the CC&R's that are attached to the deed say the ARC can grant waivers, then it is so. But many times sentences and paragraphs can be translated into two meanings: The legal meaning and the "what I want" meaning.




The original CC&Rs were silent on issues pertaining to use restrictions in general and the poultry/livestock restriction in particular. It was only when the Declarant (the developer) penned the Use Restrictions (8 months after the CC&Rs were penned) that the ARC came to being along with the specific Use Restrictions (which included the poultry restriction, the ARC's authority to enforce _and_ to make exceptions to the rules).
JanetB2
(Colorado)

Posts:4166


04/22/2018 7:52 PM  
Posted By SimonW on 04/19/2018 10:26 AM
Posted By DouglasM6 on 04/19/2018 9:46 AM
Posted By BenA2 on 04/18/2018 7:53 PM

I don't think the fact that they are called an ARCHITECTURAL Review Committee limits their jurisdiction. Ours is responsible for enforcing all restrictions, from new homes to lawns that are not mowed. I don't think that is uncommon.


Enforcing restrictions and granting waivers to the restrictions is two completely different things.

I suggest having an attorney read the documents. If the CC&R's that are attached to the deed say the ARC can grant waivers, then it is so. But many times sentences and paragraphs can be translated into two meanings: The legal meaning and the "what I want" meaning.


The original CC&Rs were silent on issues pertaining to use restrictions in general and the poultry/livestock restriction in particular. It was only when the Declarant (the developer) penned the Use Restrictions (8 months after the CC&Rs were penned) that the ARC came to being along with the specific Use Restrictions (which included the poultry restriction, the ARC's authority to enforce _and_ to make exceptions to the rules).


Now we are getting down to some nitty gritty. The issue your HOA potentially has is the fact that CCR’s are attached to the property titles and they do not discuss this issue per your prior comments. Also, the CCR’s can be better enforced under State Laws because they are attached to the Property Titles; however, yours are silent on the issue.

However ... because the CCR’s were silent the Developer then added “Use Restrictions” which I will assume was via CCR’s vs Rules and Regulations meeting or exceeding the development rights.. The major issue here is what you have already stated:

.
“Recall that the Use Restrictions document has an Exceptions section that states "The ARC has the authority to approve, in writing, exceptions to the above rules." It appears that the ARC clearly has authority to approve exceptions.”

The ACC gave an exception approval “IN WRITING”!!! If they have any such authority and it was given in writing to an owner ... your HOA in their best interest needs to drop this issue ... or it will be a HIGH DOLLAR potential lawsuit which I would predict the HOA will LOOSE!!!
DouglasM6
(Arizona)

Posts:724


04/23/2018 9:26 AM  
I agree with Janet. If the poultry restriction was not included in the original CC&R's, AND the new documents states the restrictions and allows the ARC board the authority to grant waivers, the chicken coop should remain populated!
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Forums > Homeowner Association > HOA Discussions > Can Board Rescind a Two Year Old ARC Approval?



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