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Subject: Approved violation of CC&R and ARC Guidelines - now what?
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ElizaC
(Texas)

Posts:6


03/30/2021 7:16 AM  
Hello, I would like to hear your opinion, as well as a what would you do if this was your neighborhood? I posted a similar comment about this yesterday but decided to exclude certain details from my question to ensure anonymity and in hopes of soliciting more opinions.

A detached two-story outbuilding is currently being built in our neighborhood. The structure has been confirmed at 2.5 times the height limits stated in our both our ARC Guidelines and CC&R documents; it is significantly taller than garages in the community. The roof shape doesn't match the existing architecture within the neighborhood but so far, the materials used in construction do. There are several other violations, such as the overall footprint of the outbuilding and visibility from neighboring streets, but none as egregious as the size and roof shape. Our ARC Guidelines and CC&R documents do provide a listing of considerations for certain defined variances, such as topography but none of them apply to this lot and in my opinion, it'd be a stretch to consider this ARC discretion. This building has received a lot of attention and complaints from the neighborhood, especially since children's play forts are often denied to protect neighbor's privacy. As a neighbor of this structure, my own privacy is now greatly compromised. For reference, there are approximately 3,000+ homes in our community, and there are several documented instances of complaints in addition to my own.

I am not on the Board but have been communicating with them and the property management company for almost three weeks now and have made zero headway. I have spoken to a Board Member who's advised me off the record that there exists a majority of Board membership who tend to favor decisions that aren't always in the community's best interest and are a bit arrogant and enjoy the power. As far as we know, the Board has no relationship with the owner of lot in question, but we suspect that the Board will support the ARC's decision now that construction is in progress, despite our suspicions that the application was rubber stamped for approval without a thorough review.

I know we can always vote these ARC and Board Members out, and I'm looking into ways I can be on the ARC moving forward to prevent this from happening again, but until then are there any actions and steps you would recommend? I am aware we can, but we would prefer not to litigate so I'm hoping for guidance on questions I should ask or actions I could take. I'm curious what you would do as a homeowner and/or a Board Member and welcome opinions on how to keep this concern on the Board's radar? My frustration lies primarily with the ARC and Board who - in my opinion - failed to properly consider the impact of this single structure on the entire community, rather than with the homeowner who obtained approval and is building the structure.

I appreciate any guidance you have. Thanks in advance!
MikeB23
(Louisiana)

Posts:30


03/31/2021 4:04 PM  
Have you tried the easy solutions???

Does the structure meet local building codes and does the individual have a building permit? You can always call the municipal authority which enforces permits to find the status. If the builder doesn't have a permit they you don't need to worry with the BOD.
MikeB23
(Louisiana)

Posts:30


03/31/2021 4:04 PM  
Have you tried the easy solutions???

Does the structure meet local building codes and does the individual have a building permit? You can always call the municipal authority which enforces permits to find the status. If the builder doesn't have a permit they you don't need to worry with the BOD.
ElizaC
(Texas)

Posts:6


03/31/2021 5:35 PM  
Posted By MikeB23 on 03/31/2021 4:04 PM
Have you tried the easy solutions???

Does the structure meet local building codes and does the individual have a building permit? You can always call the municipal authority which enforces permits to find the status. If the builder doesn't have a permit they you don't need to worry with the BOD.




Hi Mike, thanks for the response.

Our neighborhood is outside of the proper city limits and thus, we are not subject to municipal authorities and permits. The only means we have to enforce compliance are the CC&Rs for the association. I wish the solution was this simple!
BenA2
(Texas)

Posts:846


03/31/2021 6:24 PM  
You and other owners can enforce the CC&Rs by taking the owner to court, even if the board or ARC have approved it. The more progress they make on the building the less likely a judge will make them tear it down, so I would talk to an attorney ASAP.

If your CC&Rs actually give the ARC or board authority to approve variances then there is probably nothing you can do since they would technically be in compliance with a variance.
TimB4
(Virginia)

Posts:17531


03/31/2021 8:43 PM  
Here is another perspective:

If the Association or a member forced compliance with the covenants, the individual who built the garage with the HOA's approval would have a valid action against the association to have the Association pay to bring the garage into compliance.

Hence, you and your neighbors would pay for the legal action to force compliance, pay for the Associations defense in an action brought by the individual (who acted in good faith with the Association) and then would(expectedly) have to pay for the construction costs of bringing the garage into compliance.

My suggestion - point this out to the Board and ask why the ARC would have put the Association into such legal jeopardy. Then volunteer to serve on the ARC.
ElizaC
(Texas)

Posts:6


04/01/2021 8:59 AM  
Thanks Ben and Tim. This is a very frustrating experience and I appreciate and understand your perspective on this. Another concerned neighbor contacted an attorney yesterday, because four windows on the second floor were framed, with direct views into several neighboring yards (including my own yard and that of the concerned neighbor). We did reach out to the Board and Property Management Company three weeks ago, when the roof frame first went up and before significant progress on the structure was made, and they have failed to stop this. Our CC&Rs require that we give the Board 30 days to act, before individual homeowners are allowed to enforce compliance.

I agree that the Board's approval (whether or not the approval is considered a variance) is most concerning. I really like Tim's direct question to the Board asking for clarification on why they would put the entire Association in legal jeopardy over this. We have reached out again, but are still waiting responses to all of our inquiries. In line with what I previously stated, I do place the majority of my frustration with the Board and not the homeowner. However, as a homeowner myself, I have been provided copies of the CC&Rs and ACC Guidelines and signed documents affirming my receipt of and agreement to the declarations. It's very clear to me that this type of structure does not fall within the stated guidelines. What are your thoughts on whether the homeowner themselves bear any responsibility for violating the CC&Rs, despite the Board's approval?

For perspective, I would like to clarify that this is not a garage, but rather a completely new and detached two-story structure on a 1/3 acre lot. This structure is in addition to an approximate 4,500 square foot home and 3 car garage on the same 1/3 acre. It is highly visible from all neighboring streets and homes; in fact, these are my rear neighbors and the structure can be clearly seen from the street in front of my own home.
JohnC46
(South Carolina)

Posts:10817


04/02/2021 10:53 AM  
When the BOD will not act or has overridden a Covenant or Bylaw allowing the construction of this building the next course of action on your part is to personally go to court to stop it.
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Forums > Homeowner Association > HOA Discussions > Approved violation of CC&R and ARC Guidelines - now what?



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