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Subject: Board vs ACC
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Author Messages
JohnH57
(Texas)

Posts:36


10/09/2018 10:03 PM  
Can the Board overturn an ACC ruling? We have some homes that are not going through the ACC process for replacing of roofs which is needed. Because of this the Management has sent letters out to the homes. A few of them wrote into the ACC writing up the proper paperwork for the roof being replaced along with the color change yet it still needs to be voted by the committee. I feel 2/3 of the members are just signing off on stuff because one roof color is unlike any in the neighborhood. My fear is that others will be able to fight to have an off color roof reducing the homes values in our community because of this.
BarbaraT1
(Texas)

Posts:107


10/10/2018 7:07 AM  
What do your governing documents say?


I've seen many documents that give the Board the authority to overrule an ACC denial if the denied homeowner appeals but I've never seen documents that explicitly give the Board the authority to overrule an approval.

Committees typically serve at the pleasure of the Board and usually have the same goals. If the ACC and Board have wildly different visions as to what are appropriate architectural standards, that's something they should work out.

DouglasK1
(Florida)

Posts:1281


10/10/2018 7:31 AM  
I agree with Barbara and will add that under most governing docs once an owner gets a approval that's considered legally binding on the association and if they subsequently attempted to rescind it would probably not end up well if it goes to court.

Escaped former treasurer and director of a self managed association.
AugustinD


Posts:1222


10/10/2018 7:49 AM  
Posted By JohnH57 on 10/09/2018 10:03 PM
Can the Board overturn an ACC ruling?


Yes. Furthermore, if an ACC decision either violates a covenant or is inconsistent with longstanding practice of overlooking certain covenants, I believe the Board has a duty to overturn the ACC's decision.
MarkM31
(Washington)

Posts:394


10/10/2018 10:05 AM  
Posted By AugustinD on 10/10/2018 7:49 AM
Posted By JohnH57 on 10/09/2018 10:03 PM
Can the Board overturn an ACC ruling?


Yes. Furthermore, if an ACC decision either violates a covenant or is inconsistent with longstanding practice of overlooking certain covenants, I believe the Board has a duty to overturn the ACC's decision.




But if the homeowners have already acted in good faith because they recieved ACC approval, overturning that decision could result in monetary damages to the homeowners.
BarbaraT1
(Texas)

Posts:107


10/10/2018 12:13 PM  
Posted By MarkM31 on 10/10/2018 10:05 AM
Posted By AugustinD on 10/10/2018 7:49 AM
Posted By JohnH57 on 10/09/2018 10:03 PM
Can the Board overturn an ACC ruling?


Yes. Furthermore, if an ACC decision either violates a covenant or is inconsistent with longstanding practice of overlooking certain covenants, I believe the Board has a duty to overturn the ACC's decision.




But if the homeowners have already acted in good faith because they recieved ACC approval, overturning that decision could result in monetary damages to the homeowners.




That brings up another issue. Is the shingle color specified in the documents or is any color approved by the ACC allowed?
SheliaH
(Indiana)

Posts:2318


10/10/2018 12:13 PM  
I’m with Barbara – ultimately the Board is responsible for overseeing the association’s affairs and running it according to what’s written in the Bylaws and CCRs, so it should have final say and be able to overrule an advisory committee, unless the governing documents say otherwise.

The Board should have a charter for all committees, spelling out what they can and cannot do and perhaps the requirements the board will consider when appointing or removing committee members (I prefer people be removed for cause as opposed to “the sky is blue today – let’s get rid of Sue on the ACC because we can!)

It’s ok for some work to be referred to the committee, such as doing an initial review of an exterior request, but it may be best for the committee to issue a recommendation to the board (with an explanation if the recommendation is to deny). The board can then handle any appeals.
GeorgeS21
(Florida)

Posts:811


10/10/2018 2:21 PM  
Most docs I've seen point to the ACC being appointed in some way by the BoD ... so, the ACC serves at the pleasure of the BoD - i.e. the members of the ACC can be removed either singly or en masse.

Not sure it is as clear that the BoD can overrule as specific action of the ACC...may be able to ...
NigelB
(Texas)

Posts:251


10/10/2018 6:38 PM  
Posted By JohnH57 on 10/09/2018 10:03 PM
Can the Board overturn an ACC ruling? We have some homes that are not going through the ACC process for replacing of roofs which is needed. Because of this the Management has sent letters out to the homes. A few of them wrote into the ACC writing up the proper paperwork for the roof being replaced along with the color change yet it still needs to be voted by the committee. I feel 2/3 of the members are just signing off on stuff because one roof color is unlike any in the neighborhood. My fear is that others will be able to fight to have an off color roof reducing the homes values in our community because of this.




You really have to look at your governing documents. You should also look at the language in any ACC Rules and Regs you have published. Some will state that if the ACC grants a variance from those rules and regs, the variance is not binding on any other requests.

However, as the board appoints the ACC, it seems pretty clear that the board can also overrule any ACC decision that does not conform to the published guidelines. The board should be giving guidance to the ACC.
NigelB
(Texas)

Posts:251


10/10/2018 6:38 PM  
Posted By JohnH57 on 10/09/2018 10:03 PM
Can the Board overturn an ACC ruling? We have some homes that are not going through the ACC process for replacing of roofs which is needed. Because of this the Management has sent letters out to the homes. A few of them wrote into the ACC writing up the proper paperwork for the roof being replaced along with the color change yet it still needs to be voted by the committee. I feel 2/3 of the members are just signing off on stuff because one roof color is unlike any in the neighborhood. My fear is that others will be able to fight to have an off color roof reducing the homes values in our community because of this.




You really have to look at your governing documents. You should also look at the language in any ACC Rules and Regs you have published. Some will state that if the ACC grants a variance from those rules and regs, the variance is not binding on any other requests.

However, as the board appoints the ACC, it seems pretty clear that the board can also overrule any ACC decision that does not conform to the published guidelines. The board should be giving guidance to the ACC.
JohnC46
(South Carolina)

Posts:7871


10/11/2018 7:40 AM  
Our Attorney advised us to name the BOD as the ACC thus eliminating any confusion.
GeorgeS21
(Florida)

Posts:811


10/11/2018 8:32 AM  
John,

I think that would work in a small community, but the work needs to be spread a bit more in larger communities.
DouglasK1
(Florida)

Posts:1281


10/11/2018 3:01 PM  
Posted By JohnC46 on 10/11/2018 7:40 AM
Our Attorney advised us to name the BOD as the ACC thus eliminating any confusion.


If the board wants a say, this is probably the best course of action. A snippet of my association CCRs below suggests that an approval by the ARC is final, and I would certainly expect that anyone who commenced work in good faith after the approval would have a strong legal case if the board tried to subsequently rescind.

5. PROCEDURE BEFORE THE ARC. Prior to the commencement of any
work on the premises contemplated for improvement, an applicant
must submit to the ARC two complete sets of plans and
specifications for any improvement or structure of any kind,
together with such fully executed application form and fees as may
then be required by the ARC and such additional information as
required by this Declaration. No later than fifteen (15) business
days after receipt of said plans and specifications, the ARC shall
respond to the application in writing by approving said
application, or disapproving said application. In the event the
ARC fails to respond within the fifteen (15) day period, the plans
and specifications shall be deemed approved. In the event of
disapproval of plans and/or specifications as submitted, no work
or construction shall be commenced in furtherance of the proposed
improvement, the initial address of the ARC shall be: xxx

Escaped former treasurer and director of a self managed association.
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