Your architectural review board is, in many ways, the “hot seat” of your homeowners association. Stakes are high – the board can potentially shoot down some big lifestyle-changing projects, like adding a bedroom for a child – and since very few proposed projects are exactly like projects that have been proposed before, it’s difficult to be consistent when it comes to enforcement. And that inconsistency can create potential liability for the association.
But the board can’t sidestep the tough decisions, or ignore the proposed projects that come before them. So you’re always going to be left with people doing their best to apply some generalized language in the property CC&Rs to specific, real-world situations.
For this reason, the people handling architectural review for your association need to be some of the most experienced and mature people in your community. This isn’t a job for people who take their responsibilities lightly. The successful member of an HOA’s architectural review board will possess an extraordinary degree of technical knowledge, wisdom, judgment, reserve and tact.
Boards also need to give them the tools to interpret and enforce architectural and aesthetic provisions within the development’s founding documents. Here’s how to go about it.
1. Hold a periodic review of all existing architectural requirements. Do they still make sense? Has anything changed since they were drafted? If there’s someone out of compliance, can you take enforcement action now, before there are multiple owners out of compliance for the same thing? If you let something fester, you could run into charges of selective enforcement down the road if your board does try to enforce that provision later.
2. Verify that the existing architectural and aesthetic provisions still reflect the sense of the board. As seats on the association’s board change hands, so will the tastes and aesthetic priorities, preferences and pet peeves of board members.
3. Clarify. Is there any language in the existing documents that is causing confusion? Are there sections of the CC&Rs and other documents that are vague or missing key provisions?
4. Stress-test your policy against challenges under federal, state and local laws. An association in Raleigh, North Carolina recently paid $20,000 to settle a lawsuit alleging that the association illegally forced a blind resident to remove her wheelchair ramp after her disabled mother who was living in the residence died. The North Carolina Human Relations Commission ruled against the association and the residents sued.
5. Train and educate board members and staff. Provide training to board members on the provisions of the Fair Housing Act, and consider developing an in-house manual on fair housing provisions and discrimination laws.
6. Be clear about why requests for variances are denied. Nobody likes to get a rubber-stamp refusal from a bureaucrat. Someone went through a lot of time and effort to put together a proposal. Boards should have the courtesy of responding. Make sure the requirements for a decision are easily discernable and reasonable, and then provide the owner with a paragraph or two explaining why the board denied the request.
Ideally, the denial letter should specify some ideas for how the project could be modified to meet the concerns of the board and to pass muster. This is a win-win situation: The resident gets to do his or her renovation or project, and the board gets its concerns addressed.
7. Don’t grant variances without a good reason. The board of directors put the policy in place for a reason, and this policy was voted on by the members at large. Subcommittee members should not be subverting their decisions by granting variances willy-nilly. Members of the architectural review board must remember that they are there to look out for the interests of all members of the association.
8. Make sure your enforcement has teeth. There should be mechanisms in your covenant documents that give the board the means to enforce compliance with architectural and aesthetic guidelines.
9. Remember that lawsuits are expensive. Associations should plan on spending at least $10,000 to pursue a lawsuit against a member over a variance issue. Two or three times that, or more, if the issue is contested. Pick your battles carefully. If the process of charging fines isn’t effective, it’s often better for the HOA to go ahead and fix certain issues, and then present the homeowner the bill.