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Subject: Do your CCRs have an “esthetics” clause?
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Author Messages
BrettH3
(South Carolina)

Posts:19


09/20/2021 6:05 AM  
Our ARC allows denial based on esthetics alone. For example, one homeowner had a triple parking pad for the three-car garage, while on the board he quietly poured a fourth pad, then when off the board he applied for a 5th parking pad. The ARC denied his application because there were no 5-car pads in the neighborhood. Do your CCRs have an esthetics clause? Do you deny ARCs that are outside what’s usual in your neighborhood?
MichaelS56
(Minnesota)

Posts:300


09/20/2021 7:18 AM  
I am baffled that the ARC continues to cause so many difficulties for Boards and Associations. The ARC should not be making final decisions, the Board of Directors should be the part of the decision making process that makes the final decision.
SheliaH
(Indiana)

Posts:4284


09/20/2021 7:44 AM  
I agree with Michael, but it would appear your documents aren't helping when it states denials can be based on esthetics alone. Today's board may say they don't like four or five pad garages, but when that board is replaced by another one down the road, they can easily say "what's the problem?" and allow it.

By the way, why didn't the board do anything when the former board member poured the fourth pad? Personally, I'd deny the 5th based on that alone - he/she didn't ask for the permission with #4, so why the hell would he think he'd get away with #5? If he wants to threaten lawsuit, let him and he can explain to the judge.

Exterior change requests should consider the overall design of the community which isn't necessarily based on esthetics. For example, the documents may disallow sheds because they may be too big for the yard or the materials don't hold up very well after years of use. Swimming pools may create landscaping issues or disuse/neglect may result in a huge breeding ground for mosquitos - I know all the talk these days is on COVID, but people need to remember that stuff like West Nile hasn't gone anywhere.

Once you address with this board member, perhaps it's time to reconsider that part of the documents and talk to homeowners about amending it (because your documents probably require homeowner approval.) To replace it, the board could come up with some design standards to be applied to landscaping or whatever you want to apply them to. Your documents may allow the board to enact additional rules as long as they don't supersede the CCRs, so if you want to go with that, you should be more specific on things like colors, materials, and perhaps design. The homeowners should also have a voice in this and every few years the standards should be reviewed to be amended as necessary.
CathyA3
(Ohio)

Posts:2588


09/20/2021 8:12 AM  
When I think of "esthetics", I think of colors, choices of materials, etc. A parking pad is a functional item, and additional concrete can affect water runoff and drainage - the fact that it may be ugly doesn't change its functional nature.

So I'd analyze the request based on that. If the entire community decided to pay their yards, your storm water system may not handle it - and if you allow one person to do it, then you'd have to allow others to as well.
CathyA3
(Ohio)

Posts:2588


09/20/2021 8:13 AM  
Posted By CathyA3 on 09/20/2021 8:12 AM
When I think of "esthetics", I think of colors, choices of materials, etc. A parking pad is a functional item, and additional concrete can affect water runoff and drainage - the fact that it may be ugly doesn't change its functional nature.

So I'd analyze the request based on that. If the entire community decided to pay their yards, your storm water system may not handle it - and if you allow one person to do it, then you'd have to allow others to as well.



PAVE their yards. My kingdom for an edit button...
AugustinD


Posts:1905


09/20/2021 8:29 AM  
Posted By CathyA3 on 09/20/2021 8:12 AM
A parking pad is a functional item, and additional concrete can affect water runoff and drainage
Good catch. Drainage is a very big deal with city land use departments. It's also a big deal practically speaking. Cities heavily regulate how much impermeable surface is allowed in a development.

I would take this person with the additional unapproved pads to the mat. It's a dangerous precedent that so far, appears to be set. I do not care one bit if he's a director. If I were on this Board, I think I might even recommend consulting the HOA attorney about whether the board could and should take the unusual step of kicking him off the board for this, to protect the HOA; and as a fiduciary duty.

Else as others indicated, design standards should not be vague. "Vague" is an invitation to disputes and possibly litigation, especially as Boards and ARC's change. The courts do not like vague.
MaxB4
(California)

Posts:1594


09/20/2021 9:12 AM  
Posted By MichaelS56 on 09/20/2021 7:18 AM
I am baffled that the ARC continues to cause so many difficulties for Boards and Associations. The ARC should not be making final decisions, the Board of Directors should be the part of the decision making process that makes the final decision.



It depends on the CCRs. Sorry, but there are HOA's that the ARC does have final say.
BenA2
(Texas)

Posts:1104


09/20/2021 11:09 AM  
Posted By MichaelS56 on 09/20/2021 7:18 AM
I am baffled that the ARC continues to cause so many difficulties for Boards and Associations. The ARC should not be making final decisions, the Board of Directors should be the part of the decision making process that makes the final decision.



This varies from HOA to HOA and state to state but in ours, the ARC is completely separate from the board because the board is the body that would hear an appeal for an ARC decision. In fact, Texas recently passed a law prohibiting board members from serving on the ARC to avoid any conflict between the two groups. In our situation, the board stay clear of the decision process in case there is an appeal.
BenA2
(Texas)

Posts:1104


09/20/2021 11:09 AM  
Posted By MichaelS56 on 09/20/2021 7:18 AM
I am baffled that the ARC continues to cause so many difficulties for Boards and Associations. The ARC should not be making final decisions, the Board of Directors should be the part of the decision making process that makes the final decision.



This varies from HOA to HOA and state to state but in ours, the ARC is completely separate from the board because the board is the body that would hear an appeal for an ARC decision. In fact, Texas recently passed a law prohibiting board members from serving on the ARC to avoid any conflict between the two groups. In our situation, the board stay clear of the decision process in case there is an appeal.
AugustinD


Posts:1905


09/20/2021 11:19 AM  
In every Declaration I have seen, and post-Declarant, the Board appoints the members of the ARC. If the Board is not happy with a decision, or if there is a process for appealing a denial to the Board, then the Board can either overrule the ARC outright or replace its members.
LoriM15
(Florida)

Posts:49


09/20/2021 11:37 AM  
Back to aesthetics. Our declaration does have a clause that says that changes "must be harmonious" with the rest of the neighborhood. When we were redoing the documents, our attorney told us that clauses such as that are basically unenforceable. Too vague. So when we rewrote the documents, we put in very specific standards in our architectural review guidelines and our rules and regulations.

Instead of relying on "harmonious" colors and the taste of the architectural review board, we now have a list of colors that must be used. We lay out things like mailboxes, driveways, etc. We tried not to leave anything to chance. Yes, it's a lot of work but at least we can try and enforce now.

Our rules for driveways is that they can't be wider than the width of the garage. But our lots are narrow so there wouldn't be room for more pads unless they were in the front yard.

I agree that if someone expanded their driveway without approval they need to have a violation. You don't want to get into selective enforcement.
JohnC46
(South Carolina)

Posts:11659


09/20/2021 1:54 PM  
Our Covenants call for "maintaining a common look" and as the association does all front and side landscaping of each home, we do not allow owners to deviate from our standards. They can and must replace dead anything but only with an identical product. Each backyard has 7ft privacy fenced and owners can pretty much do anything back there.

Our lawyer advised us as the BOD has the final say over the ARC, do not even bother with an ARC. Make the BOD the ARC.
JohnC46
(South Carolina)

Posts:11659


09/20/2021 1:54 PM  
Posted By BrettH3 on 09/20/2021 6:05 AM
Our ARC allows denial based on esthetics alone. For example, one homeowner had a triple parking pad for the three-car garage, while on the board he quietly poured a fourth pad, then when off the board he applied for a 5th parking pad. The ARC denied his application because there were no 5-car pads in the neighborhood. Do your CCRs have an esthetics clause? Do you deny ARCs that are outside what’s usual in your neighborhood?



Sounds like he is creating a parking lot.
MichaelS56
(Minnesota)

Posts:300


09/20/2021 4:13 PM  
John, the purpose of our ARC is to make sure that all of the paper work is correct, answer questions that the resident may have, and to make sure that the request is in guidelines of the Association. If the ARC believe that the request is valid then the committee will "recommend approval". If they believe that the request does not fall within the Association guidelines, then the committee will not recommend approval and list the reasons.
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