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Subject: Architectural Control Committee Dispute
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BillB17
(South Carolina)

Posts:66


11/16/2020 8:26 PM  
We are a 400 single family home HOA in South Carolina. The community was established in 2000. Control was turned over to the membership in July 2010. Our Architectural Control Committee (ACC) was controlled by the developer until July 2010 when control was turned to the membership.

The ACC Design Standards for the community state that fences must be white vinyl. One of our homeowners applied to the ACC to install a white aluminum fence on his property, citing the fact that there is another white aluminum fence installed on another homeowners property.

Our ACC denied the homeowners request even though there is another identical style fence installed in the community. The denial response from our ACC stated that the circumstances surrounding the installation of the fence you cite are not known to this committee, nor did it affect this committee's decision. Further, this committee has not approved any fence in the more than 2 years that is not compliant with our documented design standards.

The Design Standards were first implemented by the Developer in 2000 and the white vinyl fence requirement has been carried forward in every revision to the standard since then.

The home where the other white aluminum fence is installed was built in 2003 and was transferred to new owners in 2012 and 2017. All records of any lot modification requests to the ACC between 2000 nd 2010 when the developer ran the ACC have either been discarded or lost. There is also no record of any request to the ACC after the membership took control of the Association for the installation of this fence.

The original owner has moved and cannot be located to try to discuss this with them.

Despite the fact that our ACC states that the circumstances surrounding the installation of the fence cited by the homeowner, the fact remains that there was a period of seven (7) years in which the original homeowner could have applied for the aluminum fence and received approval from the ACC at the time and that would be part of the ACC records that have been discarded or lost and also, the aluminum fence has been there for several years without our ACC taking any actions about it. I believe that if a homeowner installs some equipment that is not in compliance with the Design Standards and the ACC takes no action on it for several years, then the installation stands as if approved originally.

I believe our ACC is mistaken in denying this homeowners request to install a white aluminum fence on his property.

P.S. Our governing documents or by laws do not address a situation like this, other than granting the homeowner the right to appeal the ACC decision to the Board of Directors.

I appreciate any comments, opinion or insight on this situation.




AugustinD


Posts:4421


11/16/2020 8:41 PM  
Posted By BillB17 on 11/16/2020 8:26 PM
I believe that if a homeowner installs some equipment that is not in compliance with the Design Standards and the ACC takes no action on it for several years, then the installation stands as if approved originally.
-- In some instances where it's clear from looking at a number of lots in a subdivision that a covenant has not been enforced for many years, the courts will say the covenants has been abandoned. With only one lot being in apparent violation, I do not think you are on very firm ground legally.

-- How many lots have white vinyl fences?

-- Please quote verbatim (1) what any covenants pertaining to fences and variances says; and (2) what the architectural standards say on the subject of fences and on the subject of variances. If you do not do quote the covenants and arch standards verbatim, then I think the responses at this forum are unlikely to be useful.

BillB17
(South Carolina)

Posts:66


11/17/2020 8:21 AM  
Below is the exact language regarding fences from our design standards

Specifications for the fence itself are as follows:
• Open construction
• White vinyl material
• Height shall not exceed forty-eight inches (48”)
• Maximum width of pickets is four inches (4”)
• Minimum spacing of pickets to be approximately same distance as width of picket

There are probably 50 or more white vinyl fences in the community.
SheliaH
(Indiana)

Posts:3577


11/17/2020 9:16 AM  
If the standards call for vinyl and You want something else, you'll probably need to come up with a better reason than "but Mrs. A has an aluminum fence". (I think you are the denied homeowner or are on the committee and was boutvoted).

You said the original records from 2093 are gine, so you don't know if that fence was built that yeah or sometime between 2003 and 2012 when the current owners got the house. it may be the fence was built and for some reason it wasn't notices or if was and the owner (whoever that was at the time) was told it could stay, but when it's time to replace it, the fence will have to be vinyl, not wood, aluminum, iron, etc.

This type of grandfather can happen when a new board comes along and decided to enforce the CCRs as written. By then you probably have a number of violations and this makes things more manageable for people who may not have known the rule when they bought the house, or the previous board(s) were inconsistent in enforcement. Sometimes tastes change and depending on how the documents are written, standards are changed.

The keys are educating homeowners, being consistent in enforcement and periodically reviewing the rules to see what works, what doesn't work and what should be tweaked. It sounds like this board has been consistent with enforcing the fence requirement, so if you want it changed, make a better argument in your appeal or rally your neighbors together in pushing for a rules change. Maybe there should be a special committee to research all the design standards to see what changed could be made - and YOU can volunteer for it.





GeorgeS21
(Florida)

Posts:3411


11/17/2020 9:19 AM  
Bill,

Are you the homeowner in question who wants an aluminum fence?

Btw, I believe this is a dead end for that "special" homeowner - this has been enforced since the time the HOA took over from the developer, right?
CathyA3
(Ohio)

Posts:1368


11/17/2020 9:23 AM  
Looking at this from the outside, you have 50 or more fences in compliance with standards set in place at the community's inception and never changed since then. You also have 50 or more fences in compliance and one other out of compliance.

If I were on the board, I would deny the new application and send a violation notice to the owners of the aluminum fence saying that it will be grandfathered until it needs to be replaced, at which point they will need to get into compliance.

I can't see throwing out a well-established standard because of one exception. For all you know the owner of the exception didn't even seek approval.
BillB17
(South Carolina)

Posts:66


11/17/2020 9:41 AM  
I am not the homeowner requesting the aluminum fence. I am on the Association BOD and expect an appeal from the homeowner based on the fact that there is another aluminum fence in the community. I want to be able to make the right decision under these circumstances should the appeal arise.

The fence specifications have been enforced since the Association took control in 2010. The problem is that we cannot locate any record of an approval by the ACC either under developer control or the ACC under association control.

The possibilities are

1. The fence was approved by the ACC under developer control and any record of that has been discarded or lost.
2. The fence was approved by the ACC under Association control. ACC records between 2010 and 2016 are incomplete
and sketchy at best.
3. The fence was installed without a modification request submitted to the ACC and without ACC approval.
AugustinD


Posts:4421


11/17/2020 10:30 AM  
Posted By BillB17 on 11/17/2020 9:41 AM
I want to be able to make the right decision under these circumstances should the appeal arise.
"These circumstances" include what the relevant covenants say and what the relevant architectural standards say. Without your providing the relevant covenants and architectural standards, verbatim from the governing documents, what the "right decision" is can only be guessed.
AugustinD


Posts:4421


11/17/2020 10:32 AM  
Posted By AugustinD on 11/17/2020 10:30 AM
Posted By BillB17 on 11/17/2020 9:41 AM
I want to be able to make the right decision under these circumstances should the appeal arise.
"These circumstances" include what the relevant covenants say and what the relevant architectural standards say. Without your providing the relevant covenants and architectural standards, verbatim from the governing documents, what the "right decision" is can only be guessed.
Oops on me. I see BillB17 quoted the standards above. The relevant covenants are still needed. Why? Because sometimes ACCs unwittingly set standards that violate the covenants.
JohnC46
(South Carolina)

Posts:10130


11/17/2020 11:05 AM  
Bill

Might we assume the original owner had permission from the Developer and now the owners are in charge and properly following the Covenants/Bylaws. This is quite common and the BOD should hold fast on this.

One person doing something does not mean others can do it.
SheliaH
(Indiana)

Posts:3577


11/17/2020 11:20 AM  
Since the records can't be found, the only choice you have is to move forward. You don't know what happened when the other fence went in, but the board has been pretty consistent in enforcing this standard, so for that reason, I'd deny this appeal because the specifications are clear. It's not like you have 20 other people with the same type of fence.

As for the home with the aluminum fence, the board should send the owner a letter reminding him/her of the rules and advising that the fence can stay, but must be replaced with the proper fence when it's no longer useable or becomes unsightly (or both). If the house is sold, the new owner will be responsible for compliance. That's another thing your board should consider reminding homeowners of - this way, you don't fight over "why should I do X when I didn't put this thing in" or "I didn't know that was the rule" (not a good excuse - why didn't you read them before building or at least ask questions to see if prior approval was necessary?)

And I still say this is a good time to review the design standards and see if anything should be updated. The board can commission a special committee to look into this and it may want to start by polling the homeowners to see what their thoughts and suggestions are. This review could include finding ways to speed up reviews or refine the appeals process. Maybe the entire community should be surveyed to see if anyone else has something that doesn't meet the design standards - depending on when they were built, they may need to be grandfathered in. That said, I don't think I'd grandfather anything built within the past three years or so - those homeowners should have known what the rules were and acted accordingly.

JohnC46
(South Carolina)

Posts:10130


11/17/2020 1:40 PM  
Posted By SheliaH on 11/17/2020 11:20 AM
Since the records can't be found, the only choice you have is to move forward. You don't know what happened when the other fence went in, but the board has been pretty consistent in enforcing this standard, so for that reason, I'd deny this appeal because the specifications are clear. It's not like you have 20 other people with the same type of fence.

As for the home with the aluminum fence, the board should send the owner a letter reminding him/her of the rules and advising that the fence can stay, but must be replaced with the proper fence when it's no longer useable or becomes unsightly (or both). If the house is sold, the new owner will be responsible for compliance. That's another thing your board should consider reminding homeowners of - this way, you don't fight over "why should I do X when I didn't put this thing in" or "I didn't know that was the rule" (not a good excuse - why didn't you read them before building or at least ask questions to see if prior approval was necessary?)

And I still say this is a good time to review the design standards and see if anything should be updated. The board can commission a special committee to look into this and it may want to start by polling the homeowners to see what their thoughts and suggestions are. This review could include finding ways to speed up reviews or refine the appeals process. Maybe the entire community should be surveyed to see if anyone else has something that doesn't meet the design standards - depending on when they were built, they may need to be grandfathered in. That said, I don't think I'd grandfather anything built within the past three years or so - those homeowners should have known what the rules were and acted accordingly.





Sound advice.
GeorgeS21
(Florida)

Posts:3411


11/17/2020 3:36 PM  
Agree with Shelia and John,

Very important to establish the standards, and adhere to them - and, as appropriate, notify those that may have convinced the developer to allow the fence, or perhaps they just did it and the developer did nothing about it.

In any case, I would absolutely enforce the restriction.

Odd things can happen - so don't let them distract you. Ex: a member of the community of which I am a board member (but non-resident), wanted to extend a fence to a location near the sidewalk (corner lot). The owner pushed and cycled through the ARC process three times with exactly the same outcome. The owner brought it to the board where we asked her to consider the three declines and submit it directly to the board if she felt strongly about it. I also noted, as the president, that I would be inclined to also decline the application for several reasons - the board agreed, but also agreed to review the application. The owner then filed a grievance with Florida based on discrimination because she is hispanic. When notified of the grievance by the state, the property manager, having obviously written a response to this sort of grievance, wrote an astonishingly good response with details to substantiate each step in our process - and very effectively refuting all claims of discrimination. Been about a month - we're still waiting for the next shoe.
BillB17
(South Carolina)

Posts:66


11/17/2020 5:23 PM  
Many thanks to all who responded here.

I think I have my answer - plus some additional perspectives I had not thought about.

KellyM3
(North Carolina)

Posts:1575


11/17/2020 7:58 PM  
A review of the by-laws and covenants may define the ARC and the powers it possesses. In my community, the by-laws clearly state that the ARC can rule arbitrarily on matters. I'd deny the request for aluminum but would think that aluminum is a superior building component than vinyl.

A review of the rules could be in order if the aluminum fence is aesthetically identical to the vinyl but that's chasing a different rabbit.
AugustinD


Posts:4421


11/17/2020 8:11 PM  
Posted By KellyM3 on 11/17/2020 7:58 PM
In my community, the by-laws clearly state that the ARC can rule arbitrarily on matters.
And the courts say that where the governing documents give an ARC or HOA Board discretionary powers, the ARC or HOA Board must be fair and reasonable (and so not arbitrary nor capricious).
GeorgeS21
(Florida)

Posts:3411


11/17/2020 8:52 PM  
A thought on vinyl - HURRICANES!

After being on the eye wall of Sally, and seeing how fencing behaved:
- solid vinyl was history in small pieces
- open vinyl was much worse than solid wood
- "good neighbor" fences - wood slats BOTH side with air flow best
- fences with posts set in concrete broke off at ground level
- fences with post NOT set in concrete blew over, but were easily brought back to vertical, retamped and supported until firmed back up
ND
(PA)

Posts:511


11/18/2020 5:47 PM  
Looking at this from possibly a different angle/lens . . .

I get that the current rule says, "white vinyl material", but I think it makes sense to possibly consider why the rule says that. I could be off, but I'd assume the original designers wanted a consistent look and also wanted to prohibit many of the other commonly-used and various-colored materials like wood fence, post & rail, chain link, wrought iron, etc. However, with their "white vinyl material" only stipulation, they perhaps also unintentionally excluded other possible materials (like aluminum) that could offer the same or similar look/color as vinyl.

I'm one for following and enforcing the rules. But when someone wants to do something that is likely consistent with the overall aesthetic of the neighborhood but is perhaps a better option than what the current rule requires, then I think that deserves some consideration, and should not so quickly be rejected because "the rules are the rules and they must be enforced at all costs . . . no matter what . . . and without considering anything else".

It's likely that the HOA's documents permit variances to the rules, especially in the case of architectural standards.

I'm sure that an aluminum fence as compared to it's vinyl counterpart will be much more costly, and with that cost will be added strength, decreased necessary maintenance, lessened possibility of becoming easily broken/damaged, and lessened likelihood of deformation/bending/sagging (as vinyl tends to do over time). All good characteristics of allowing the aluminum over the vinyl.

If the aluminum fence will look the same or similar enough to the vinyl fences in the neighborhood and the other specifics of the fence rule are complied with (open construction, height not exceed 48”, max picket width 4", min picket spacing approx same as width of picket), then I think the proposal actually deserves consideration and perhaps granting of a waiver/variance.

I don't think the existence of only one other aluminum fence in the neighborhood needs to factor into the decision. I think the decision should be based on it's own merit of complying with all of the stated rules except for the material from which the fencing is made. (Unless there are other facets of the aluminum fence that don't comply with the rules, then there may be more to actually have to consider.)
JohnC46
(South Carolina)

Posts:10130


11/19/2020 9:01 AM  
Posted By ND on 11/18/2020 5:47 PM
Looking at this from possibly a different angle/lens . . .

I get that the current rule says, "white vinyl material", but I think it makes sense to possibly consider why the rule says that. I could be off, but I'd assume the original designers wanted a consistent look and also wanted to prohibit many of the other commonly-used and various-colored materials like wood fence, post & rail, chain link, wrought iron, etc. However, with their "white vinyl material" only stipulation, they perhaps also unintentionally excluded other possible materials (like aluminum) that could offer the same or similar look/color as vinyl.

I'm one for following and enforcing the rules. But when someone wants to do something that is likely consistent with the overall aesthetic of the neighborhood but is perhaps a better option than what the current rule requires, then I think that deserves some consideration, and should not so quickly be rejected because "the rules are the rules and they must be enforced at all costs . . . no matter what . . . and without considering anything else".

It's likely that the HOA's documents permit variances to the rules, especially in the case of architectural standards.

I'm sure that an aluminum fence as compared to it's vinyl counterpart will be much more costly, and with that cost will be added strength, decreased necessary maintenance, lessened possibility of becoming easily broken/damaged, and lessened likelihood of deformation/bending/sagging (as vinyl tends to do over time). All good characteristics of allowing the aluminum over the vinyl.

If the aluminum fence will look the same or similar enough to the vinyl fences in the neighborhood and the other specifics of the fence rule are complied with (open construction, height not exceed 48”, max picket width 4", min picket spacing approx same as width of picket), then I think the proposal actually deserves consideration and perhaps granting of a waiver/variance.

I don't think the existence of only one other aluminum fence in the neighborhood needs to factor into the decision. I think the decision should be based on it's own merit of complying with all of the stated rules except for the material from which the fencing is made. (Unless there are other facets of the aluminum fence that don't comply with the rules, then there may be more to actually have to consider.)




This post raises some god points. Especially the last paragraph summation.
AugustinD


Posts:4421


11/19/2020 9:05 AM  
Posted By ND on 11/18/2020 5:47 PM

I get that the current rule says, "white vinyl material", but I think it makes sense to possibly consider why the rule says that.
I agree. This is why I wish the OP would provide the excerpts from the Declaration (CC&Rs) that discuss fences and what the ARC is permitted to do. Granted the OP may have no idea why the Declaration (CC&Rs) have a role here, and how big this role is, according to court decisions.
BillB17
(South Carolina)

Posts:66


11/19/2020 9:44 AM  
This is what our Declaration has to say about the ACC and Design Standards, which is the only place where fences and requirements are mentioned.

Design Standards:
a. The ACC shall from time to time adopt, promulgate, amend, revoke and enforce guidelines (the "Design Standards") for the purpose of:
(i) Governing the form and content of plans and specifications to be submitted to the ACC for approval pursuant to the provisions of the declaration;
(ii) Governing the procedure for such submission of plans and specifications;
(iii) Establishing guidelines with respect to the approval and disapproval of design features, architectural styles, exterior colors and materials, details of construction, location and size of structures and all other matters that require approval of the ACC pursuant to this Declaration, and
(iv) Assuring conformity and harmony of external design and general quality of the Development.
b, All Design Standards promulgated, amended or revoked by the ACC shall be approved by the Board of Directors prior to the adoption or enforcement of such Design Standards by the ACC.
c. The ACC shall make a published copy of its current Design Standards readily available to Members and prospective Members of the Association and to all applicants seeking ACC approval.
AugustinD


Posts:4421


11/19/2020 10:04 AM  
BillB17, thank you for providing the covenant on this subject. As a judge in a court of law would say, here are my "findings of fact and conclusions of law":

-- The Declaration does not expressly address either fence construction or appearance.

-- The Declaration gives the ACC discretionary power to establish standards pursuant to a number of express goals.

-- One of these express goals is to assure "conformity and harmony of external design and general quality of the Development."

-- The material of one fence may vary from that of another fence while the "external design" is the same.

-- A white aluminum fence does not vary in "external design" from a white vinyl fence. [BillB17, correct me if I am wrong on this point.]

-- South Carolina appeals court decision yada yada requires that, where a Declaration gives a Board or ACC discretionary power, this power must be exercised reasonably.

-- The ACC's Design Standards are an exercise of discretionary power.

-- For the ACC to exercise its discretionary power reasonably, the ACC must approve any white fence that has the same "external design."
AugustinD


Posts:4421


11/19/2020 10:26 AM  
I believe the 1985 South Carolina appeals court decision in Palmetto Dunes Resort v. Brown is the seminal legal precedent for South Carolina HOA architectural decisions. As interested, see https://casetext.com/case/palmetto-dunes-resort-v-brown and all the cases afterwards that cited it.

DavidF22
(New York)

Posts:73


11/20/2020 7:40 AM  
You should come to our HOA in New York, where the two members of the architectural review committee have been the biggest architectural rule violators. With one, they had to settle out of court in dueling lawsuits and retroactively approve most of his violations. In the second, the board finally threw him off the committee when neighbors pointed out that recent renovations had made his house a laboratory for rule violations. The second is also a former board president famous for handing out fines for the alleged rule violations of others.

You can't make this stuff up. I thought you would all like a laugh for the day.
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