COVID PROJECTS AND YOUR ARCHITECTURAL PROCESS

5 STEPS TO ACHIEVING ARCHITECTURAL GREATNESS.

BY MARK GUITHUES, ESQ.

The interweb is awash with COVID projects accomplished or to be accomplished while we all stay at home. These projects, combined with the disease’s induced stress, have led to voluminous architectural applications (or not) and an unprecedented level of anger when owners don’t receive immediate approval for their visions. Here are five steps for achieving architectural greatness at your community.

1. KNOW WHO THE ARCHITECTURAL COMMITTEE IS.

Seems easy enough, but that ad hoc nosy and generally annoying neighbor may not have been appointed by the board at all. A board, serving as a default committee, may not have identified itself as serving in that capacity. Some committees are separately elected, like directors, and don’t necessarily serve at the pleasure of the board.

ACTION ITEM

Read the appointment process in the community’s CC&Rs and try to find a way to document that yours is done right, before enforcement begins.

2. UNDERSTAND THE AUTHORITY OF YOUR ARCHITECTURAL COMMITTEE.

Your particular committee’s authority to limit or control an owner’s specific architectural improvement is contained within that unique language described in the community’s governing documents. Do not assume that your committee’s vague understanding that they “control all improvements” allows them to stop improvements in a private side-yard, back-yard or exclusive use area.

ACTION ITEM

Provide your committee with the specific enabling language of the architectural provisions of the CC&Rs and discuss their scope of authority before evaluating applications. While you’re at it, distribute and discuss a copy of Civil Code §4765, the controlling statute for the architectural approval process.

3. KNOW THY ARCH REGS.

Most CC&Rs contain authority for the board to enact further architectural rules and regulations (and usually fines). Such rules must be enacted like any other rule in accordance with Civil Code §4360. Communities should use their rules to clarify apparently conflicting or ambiguous language existing within their CC&Rs. Then, proposed rules should be reviewed by legal counsel to confirm they augment, but do not conflict with, the CC&Rs.

CC&Rs generally lack specificity as to process and standards. Process should include prompt deadlines for review, information about committee meetings and any records of written decisions. There should be an explanation of why an owner’s application is disapproved, along with a process for appeal to the board as well as common standards including “pre-approved” items like pre-selected security screen doors, paint schemes and satellite dish locations.

ACTION ITEM

Have your committee read and internalize the specific provisions of your community’s architectural rules and regulations before they start evaluating architectural applications. Like all rules, architectural rules should be distributed to the membership annually as part of the Annual Policy Statement.

4. UNDERSTAND YOUR DISCRETION.

Depending on the language of the CC&Rs, the authority of the committee can be quite broad when it comes to discretionary or “subjective” decisions. For example, when analyzing CC&R language authorizing a committee to deny applications based on “attractiveness” and “artistry,” one court found that “such qualities have never been measurable or quantifiable. Therefore, we conclude as a matter of law the association and its subordinate entities maintain the power under their enabling covenant to apply both subjective and objective criteria when evaluating the merit of proposed improvements to covenant property.” Analyzing the same CC&Rs, a later court concluded “…where the record indicates the [committee] acted within the authority granted to it by the [CC&Rs], pursuant to a reasonable investigation, in the best interests of the community and not in an arbitrary manner, we will respect and uphold their decisions.“

ACTION ITEM

Make sure your committee understands that, within the above described parameters, it can and should exercise its discretion when approving or disapproving a proposed improvement.

5. NAIL YOUR CONSISTENCY.

The key to avoiding legal conflict over the above discussed discretion is to treat “like circumstances similarly.” No less than California’s Supreme Court, when discussing enforcement of such restrictions stated: “…when an association determines that a unit owner has violated a use restriction, the association must do so in good faith, not in an arbitrary or capricious manner, and its enforcement procedures must be fair and applied uniformly.” This means that your committee should clearly communicate the reasoning behind their approvals and disapprovals.

ACTION ITEM

Require your committee to clearly identify the reasons that applications are denied or approved so that there is clear justification for approval, and often more importantly, differentiation for future applications that don’t measure up to such standards. Taking time to identify and train your architectural committee is the best way to prepare it for addressing the various springing COVID projects within your community. The best way to avoid the stress of the voluminous architectural applications and unprecedented levels of anger is to make sure your community’s committee is ready with a keen understanding of the parameters of their authority, encourage them to exercise their discretion and taste within such parameters, and have them document the reasoning behind their decisions.

Mark Guithues, Esq. is an attorney with Community Legal Advisors and serves on CACM’s Law Journal Editorial Committee.