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Subject: Florida 720.3035
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SmartS
(Florida)

Posts:39


11/27/2020 7:17 AM  
Referring to:
720;3035 "1) The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

Many items are not spelled out in the docs so this paragraph is always used for denial. It is from docs prepared in 1992. For example there are no specific paint colors.

Here is the DOC language:
"THEREFORE, the Developer has appointed an Architectural Review Committee (ARC) comprised of a combination of property
owners and paid professional consultants to evaluate proposed improvements with emphasis upon their harmonious incorporation·
into the community as a whole and with specific emphasis on external design, location of the improvement in relation to the
surrounding structures and landscape and/or improvements, topography, and conformity with the restrictive covenants,
criteria and procedures imposed by SEASIDE. The ARC shall, at its sole discretion, judge the adequacy of plans submitted and
may reject any proposed construction or alteration or development for any reason including purely aesthetic reasons provided
however that approval of plans shall not be unreasonably withheld."

The BOARD ARC simply uses "harmony" to deny anything they want. What can be inferred from that language?

PS Developer is gone and Homeowners running the HOA BOD and ARC (same members) small development less than 20 homes.
AugustinD


Posts:4828


11/27/2020 7:35 AM  
Posted By SmartS on 11/27/2020 7:17 AM
The BOARD ARC simply uses "harmony" to deny anything they want. What can be inferred from that language?
The phrasing re harmony gives the Board/ARC a lot of power but not unlimited power. The power must be reasonably and fairly exercised. Granted what "reasonable" and "fair" are is as vague as "harmonious." Nonetheless, when it comes to Board/ARC decisions, the courts do interpret what is reasonable and fair quite often.
SmartS
(Florida)

Posts:39


01/12/2021 10:32 AM  
The word "proposed" seems to indicate the Board must decide if the plans submitted are harmonious BEFORE approving the plans.

What do you think.
AugustinD


Posts:4828


01/12/2021 12:25 PM  
Posted By SmartS on 01/12/2021 10:32 AM
The word "proposed" seems to indicate the Board must decide if the plans submitted are harmonious BEFORE approving the plans.

What do you think.
In general I agree. But if there's a lawsuit, and the Board wants to say after approval that the member's architectural plans were not harmonious, I'd say the Board will prevail.
AugustinD


Posts:4828


01/12/2021 12:26 PM  
Posted By AugustinD on 01/12/2021 12:25 PM
Posted By SmartS on 01/12/2021 10:32 AM
The word "proposed" seems to indicate the Board must decide if the plans submitted are harmonious BEFORE approving the plans.

What do you think.
In general I agree. But if there's a lawsuit, and the Board wants to say after approval that the member's architectural plans were not harmonious, I'd say the Board will prevail.
Oops; this is assuming the court finds the Board was reasonable and agrees the plans are not harmonious.
SmartS
(Florida)

Posts:39


01/13/2021 11:27 AM  
AugustinD

Wow, interesting assessment.

Am I understanding you correctly that even after a Board approves a Landscape plan (actually approved the same plants 2 times), then it is installed by a professional landscaper exactly as the plan indicates, the Board/ARC can claim the Landscaping is suddenly not harmonious?

So hard to decide exactly what should be put in the brief fact pattern.

How about if I added that the approved plan was 95% what was already on the property from the first plan, and only the areas that were already existing are at issue. Meaning they saw those areas (1/2 from 2019 and the other 1/2 from 2020) in advance that are suddenly not harmonious?

Just curious that you agree but think a court would actually delve into injecting their opinion on harmonious after?

It says in the Docs they can only reject "proposed" construction or alterations. Wouldn't you agree that proposed means prior to approval?

Thank you for engaging. I really do appreciate your thoughts, whether they are in my favor or not.
AugustinD


Posts:4828


01/13/2021 12:11 PM  
Posted By SmartS on 01/13/2021 11:27 AM
AugustinD

Wow, interesting assessment.

Am I understanding you correctly that even after a Board approves a Landscape plan (actually approved the same plants 2 times), then it is installed by a professional landscaper exactly as the plan indicates, the Board/ARC can claim the Landscaping is suddenly not harmonious?
-- The premises got muddled in my earlier post.

-- Assume a Board approves a landscape plan (and twice, to boot) submitted by member Sally Smith. Member Sally Smith understandably relies on this approval and installs the landscaping.


-- Suppose next the Board changes its mind and tries to force Sally Smith to change her landscaping. The dispute lands in court. From my reading of case law, and in general, I would expect the trial court to give the HOA two choices: Pay to correct Sally Smith's yard and in a way that Sally agrees to; or grandfather Sally Smith's yard as acceptable on account of Board error.

-- Suppose neighbor Bob Roe sues Sally Smith and the HOA, claiming Sally's yard violates the covenants. Bob Roe says the Board goofed when it approved the landscaping. I would expect the trial court to ask if the Board's approval was reasonable. If so, Bob loses. The HOA wins. Sally wins. If the court finds that the Board's approval was not reasonable, then the court orders the HOA to make Bob whole, somehow, perhaps with money, though quantification is important in court and I am not sure how to quantify Bob's damages. But I do know that, under these circumstances, Bob has a right to enforce the covenants. I think the trial court might order the HOA to pay to correct Sally's yard and in a way that Sally agrees to.


[snip detail I am desperately trying to avoid, probably just like a judge. Judges hate this HOA lawsuit cr-p]

Just curious that you agree but think a court would actually delve into injecting their opinion on harmonious after?
Where the governing documents give a board discretion, nationwide the courts say this discretion must be exercised "reasonably." Time and again courts say that what is "reasonable" is not defined. Reality: The Trial Court gets to say what is reasonable. Appeals courts have to respect findings of facts by trial courts. Generally speaking. There is a lot of nuance in some of the case law on this. Remember, attorneys often do not care how long a dispute will take to resolve. They may prefer a long dispute. Because this is more billable hours for them.

It says in the Docs they can only reject "proposed" construction or alterations. Wouldn't you agree that proposed means prior to approval?
I agree "proposed" means "prior to approval."

Thank you for engaging. I really do appreciate your thoughts, whether they are in my favor or not.
You are welcome. I am helping a pro se defendant as we speak. Down the road, at trial or at a motion hearing, the plaintiff HOA has revealed it is going to argue that the Declaration gives the Board discretion on xyz point. I have the defendant saying to the judge, "Your Honor, could you please ask the plaintiff's attorney, as members of the bar, how they can say ____? " Because discovery reveals the plaintiff's attorney is raising a patently nonsensical argument. The plaintiff's HOA's attorney clearly has found a cash cow in the HOA's board.
GenoS
(Florida)

Posts:4242


01/13/2021 12:38 PM  
Posted By AugustinD on 01/13/2021 12:11 PM
-- Suppose neighbor Bob Roe sues Sally Smith and the HOA, claiming Sally's yard violates the covenants. Bob Roe says the Board goofed when it approved the landscaping. I would expect the trial court to ask if the Board's approval was reasonable. If so, Bob loses. The HOA wins. Sally wins. If the court finds that the Board's approval was not reasonable, then the court orders the HOA to make Bob whole, somehow, perhaps with money, though quantification is important in court and I am not sure how to quantify Bob's damages. But I do know that, under these circumstances, Bob has a right to enforce the covenants. I think the trial court might order the HOA to pay to correct Sally's yard and in a way that Sally agrees to.


[snip detail I am desperately trying to avoid, probably just like a judge. Judges hate this HOA lawsuit cr-p]

I pretty much agree with this although I think Bob may sue under the contract for specific performance or some type of injunction. I think the only money Bob might be awarded would be for his attorney fees and court costs. Those are the only things that would have a quantifiable cost.

If the board grandfathered Sally's landsaping into compliance, what happens when she sells? The new owner shouldn't have to deal with any of it. And if Sally is made to revert or remove her landscaping when she sells, why not make her do it earlier rather than later when costs are almost certain to go up?
SmartS
(Florida)

Posts:39


01/13/2021 6:36 PM  
Thank you Augustin and Geno. Very interesting and insightful points! It really helps.
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