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Subject: Architectural Denial Letter
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BarbaraB10
(California)

Posts:107


11/18/2018 6:24 AM  
I am the chairperson of my HOA's architectural committee.

Currently, an architectural request was denied for fiberglass panels, anchored to wood posts behind an existing block wall which also exceeds the height of the wall. The existing wall already has the permitted wrought iron height extension of approximately 15 inches. The home is on a corner lot and the fiberglass is viewable on the street side of the lot which is next to a busy perimeter street of the HOA. The hodgepodge is exactly what the CCRs intend to avoid. The CCRs also support the denial. Owner had a bike stolen from the yard, valued at $50 and a police report filed. Storage of items in the yard is not allowed -it's considered nuisance per CCRs. In my proposed letter, 2 suggestions were given - store elsewhere (garage or house) and/or erect a shed.

The HOA rules and CCRs do not address denials (provide a reason for denial) and they do not address an appeal process; they are silent. This does not seem fair and or reasonable to me. Denial and appeals are addressed in Davis-Stirling Act which I believe take precedence when the governing documents are silent. I am being urged to send denial without an explanation. I am also urged not to mention the opportunity for appeal. In good conscience I can't do that and believe a simple but detailed letter is in order. I need to send the denial letter this week so your input is important.

Thanks in advance

From the Davis-Stirling Act:
§4765. Architectural Review Procedures
(a) This section applies if the governing documents require association approval before a member may make a physical change to the member’s separate interest or to the common area. In reviewing and approving or disapproving a proposed change, the association shall satisfy the following requirements:
(1) The association shall provide a fair, reasonable, and expeditious procedure for making its decision. The procedure shall be included in the association’s governing documents. The procedure shall provide for prompt deadlines. The procedure shall state the maximum time for response to an application or a request for reconsideration by the board.
(2) A decision on a proposed change shall be made in good faith and may not be unreasonable, arbitrary, or capricious.
(3) Notwithstanding a contrary provision of the governing documents, a decision on a proposed change may not violate any governing provision of law, including, but not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), or a building code or other applicable law governing land use or public safety.
(4) A decision on a proposed change shall be in writing. If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
(5) If a proposed change is disapproved, the applicant is entitled to reconsideration by the board, at an open meeting of the board. This paragraph does not require reconsideration of a decision that is made by the board or a body that has the same membership as the board, at a meeting that satisfies the requirements of Article 2 (commencing with Section 4900) of Chapter 6. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 5905.
(b) Nothing in this section authorizes a physical change to the common area in a manner that is inconsistent with an association’s governing documents, unless the change is required by law.
(c) An association shall annually provide its members with notice of any requirements for association approval of physical changes to property. The notice shall 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. 󞪌 - Based on former §1378]
SheliaH
(Indiana)

Posts:2311


11/18/2018 6:46 AM  
This is more of a Kerry question since she's in California, but that said, I agree with you that the homeowner should receive an explanation and there should be an appeals process. Not everything in HOA land will be addressed in the CCRs and it's not always necessary - the board should have some leeway to enact additional rules as long as they don't contradict the documents.

In this case, the Act applies if the documents require association approval for exterior changes, so it's weird that your community doesn't have a process. Has anyone said why there isn't one or why they object to it? This would be a great issue for the committee to discuss and make recommendations to the board. Why not discuss it among the committee and make a recommendation to the board that a letter is drafted to at least cite the part of the CCRs that prohibit whatever this homeowner wants to do? The committee can also suggest that the board consider enacting an appeals process - to keep things fair, I would suggest that either the board handle it or come up with some sort of appeal committee that could hear the case. Or see if there's some sort of alternative dispute resolution program you might use.
SueW6
(Michigan)

Posts:354


11/18/2018 6:51 AM  
Did the applicant come before the Committee for a hearing with his application?

If so, there would be minutes of the meeting and an explanation of the denial, referenced in the CCRs in the minutes, since that's what the committee used to deny the application.

Enough said.

HOWEVER - if this was done all thru mail, then a written denial with explanation would be expected.

RoyalP
(South Carolina)

Posts:203


11/18/2018 6:55 AM  
..... I agree with you that .....


Matters not that you 'agree'.

The OP's question was answered by the very document (Davis-Sterling Act) that the OP actually quoted.

Evidently the OP did not, or could not, read and comprehend the actual LAW.


{begin rant}

Typical volunteer incompetence and nonfeasance.

This is a perfect example of why some volunteers sometimes create more havoc than the money they "save".

The governing documents specify their duties.

The law governs their actions.

They do not, obviously, read or understand either.

{end rant}
RoyalP
(South Carolina)

Posts:203


11/18/2018 6:56 AM  
from the OP:

..... (4) A decision on a proposed change shall be in writing. If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
(5) If a proposed change is disapproved, the applicant is entitled to reconsideration by the board, at an open meeting of the board. .....
SueW6
(Michigan)

Posts:354


11/18/2018 6:59 AM  
I think the issue from the OP was how to notify the applicant and whether the applicant deserved a letter of detail and information on the appeal process.

RoyalP
(South Carolina)

Posts:203


11/18/2018 7:37 AM  
The applicant does not "deserve" a letter of detail (or denial).

The Committee is REQUIRED to provide same.

PLEASE, no more 'thinking' and much more reading and compliance.
RoyalP
(South Carolina)

Posts:203


11/18/2018 7:39 AM  
INCLUDED WITH THE OP's ORIGINAL POST:


Posted By RoyalP on 11/18/2018 6:56 AM
from the OP:

..... (4) A decision on a proposed change shall be in writing. If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
(5) If a proposed change is disapproved, the applicant is entitled to reconsideration by the board, at an open meeting of the board
. .....





SHEEZ
KerryL1
(California)

Posts:5950


11/18/2018 9:03 AM  
You're right RoyP, and it's a good to support the OP in that way. But there's no need to be a jackass. Note, RoyP, the Act is Davis-Stirling, please read more carefully. Will the unhelpful braying continue today?

Yes, Barbara, your HOA must follow the law: "(4) A decision on a proposed change shall be in writing. If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
(5) If a proposed change is disapproved, the applicant is entitled to reconsideration by the board, at an open meeting of the board."

Our HOA just sent out its budget for '19 and we have a clear summary of our procedures in the package.

Inform whomever is "urging" you to NOT send an explanation of their proposed change that your Committee or the Board must send it to the Owner. Do you have a property manager? Often that person would do the mailing. Btw, who IS trying to bully you?

(At our HOA and I don't think most in CA come before the committee unless for an appeal. We've never had an appeal (high rise), though. Richard will know more)

RoyalP
(South Carolina)

Posts:203


11/18/2018 9:49 AM  
Kerry,

I am not familiar with, nor do I care about, the 'Act' pertaining to CA.

This what the OP posted (copy and paste + bold / underline):

From the Davis-Stirling Act:
§4765. Architectural Review Procedures
(a) This section applies if the governing documents require association approval before a member may make a physical change to the member’s separate interest or to the common area. In reviewing and approving or disapproving a proposed change, the association shall satisfy the following requirements:
(1) The association shall provide a fair, reasonable, and expeditious procedure for making its decision. The procedure shall be included in the association’s governing documents. The procedure shall provide for prompt deadlines. The procedure shall state the maximum time for response to an application or a request for reconsideration by the board.
(2) A decision on a proposed change shall be made in good faith and may not be unreasonable, arbitrary, or capricious.
(3) Notwithstanding a contrary provision of the governing documents, a decision on a proposed change may not violate any governing provision of law, including, but not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), or a building code or other applicable law governing land use or public safety.
(4) A decision on a proposed change shall be in writing. If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
(5) If a proposed change is disapproved, the applicant is entitled to reconsideration by the board, at an open meeting of the board. This paragraph does not require reconsideration of a decision that is made by the board or a body that has the same membership as the board, at a meeting that satisfies the requirements of Article 2 (commencing with Section 4900) of Chapter 6. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 5905.

(b) Nothing in this section authorizes a physical change to the common area in a manner that is inconsistent with an association’s governing documents, unless the change is required by law.
(c) An association shall annually provide its members with notice of any requirements for association approval of physical changes to property. The notice shall 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. 󞪌 - Based on former §1378]



HEEE - HAW
BarbaraB10
(California)

Posts:107


11/19/2018 6:23 AM  
Thank you for your replies.

The applicant did not come before the committee - only submitted a written request. Everything is handled thru mail or personal delivery to/from the business office.

I reviewed the governing documents, When I did not find the answer, I reviewed the civil code (Davis-Stirling Act). I then drafted the letter before I posted and should have indicated in my original post that the letter followed 4 & 5 of the code. To answer one of the questions - of course the applicant "deserves" a letter of determination. Being entitled to a written response regarding denial or appeal is the law, the very heart of the law, IMHO.

I can't send a non-HOA document without the president's approval. There is no manager or other guidance except for the attorney - and the board for sure will not contact counsel, even if their hair is on fire.

I will call an emergency meeting of the committee and will consider sending the letter based on committee consensus.
Given the circumstances, this seems to be my one and only realistic option.

If there is another option short of resignation, please let me know.


KerryL1
(California)

Posts:5950


11/19/2018 10:15 AM  
Note the spelling of Davis-Stirling, RoyP. Since you do correct the spelling of others at times, I thought you'd want to spell this one correctly whether or not you care about its content.

Tough one, Barbara. Does your charter say the prez must approve communication with owners about ARC topics? Or some other HOA doc.? Does you HOA send out ARC requirement summaries annually as also required by Davis-stirling?

Anyway, I can't think of a better choice than what you decided. Let the applicant know their rights in writing per CA statute.

RoyalP
(South Carolina)

Posts:203


11/19/2018 11:38 AM  
I stand corrected re: my typo "Sterling, S/B Stirling".


I
FredS7
(Arizona)

Posts:860


11/21/2018 1:20 PM  
> In my proposed letter, 2 suggestions were given - store elsewhere (garage or house) and/or erect a shed.

You should not suggest alternatives. You should state that the application is rejected and why. (Only).

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