Generally, the homeowner submits an application for some sort of change to the property, and the board of directors or an appointed architectural review committee (often abbreviated as the “ARC,” “ACC,” or “ARB”) will determine whether the submitted application will be approved. Many associations require some sort of drawing or rendering of what the change will look like, along with pictures or samples. This helps the ARC to understand how the proposed changes will look when completed.
There are often strict deadlines for the ARC to respond to any submitted application. All homeowners associations should have a process in place for receiving, reviewing, and responding to all applications in a timely manner. Depending on the language contained within the association’s Declaration of Covenants, Conditions and Restrictions (the “Declaration”), the ARC’s failure to respond in a timely manner may be treated as an approval. For this reason, it is imperative that the ARC keep a close eye on all applications.
In reviewing an application, the ARC typically will review any restrictions contained within the Declaration that relate to the proposed alteration. The association may also have architectural guidelines and other rules and regulations that were adopted by the Board, based on the restrictions already in and authorized by the Declaration. For the ARC, any architectural decision based on clear language in the Declaration is always easier to defend than additional architectural guidelines, even if those guidelines are permitted by the Declaration.
The majority of the time, the application is approved. For those applications that are not approved, the ARC must contact the homeowner and inform the homeowner of the negative decision. The denial letter is an essential element of the process and should be designed to not only convey the actual decision—the denial—but provide valuable information to the homeowner about how to put together a successful application.
North Carolina courts have upheld restrictive covenants that give the ARC wide discretion to approve or disapprove alterations to homeowner property so long as the authority is exercised reasonably and in good faith. For the ARC’s actions to be considered reasonable and in good faith, the North Carolina Supreme Court has required that the ARC give definite and legitimate reasons why an application is denied. In addition, the ARC should provide suggestions to the homeowner on what changes are needed for possible reconsideration and approval.
For example, let’s say that a homeowner wants to install a fence in her back yard. She submits an application showing what it will look like, the color(s) she has chosen, and how it fits into any restrictions or rules that her association has. The ARC decides to deny her application.
Rather than mailing the homeowner a letter stating only “application denied,” or “denied because it violates our rules,” the ARC should be specific and offer feedback on how to submit a successful application. Maybe in this instance her application called for a six-foot fence painted pink. The ARC can communicate the denial, but should also point out that the association’s restrictions permit only a four-foot fence and that pink would not fit well in the overall concept of the neighborhood where the only permitted colors for fences are white and black. The ARC can suggest colors that would fit and ask that she install a fence that fits within the association’s restrictions.
When dealing with architectural applications, an ounce of prevention is truly worth more than a pound of cure. Providing meaningful feedback to homeowners on their architectural applications will help to eliminate misunderstandings, head off possible litigation, and generally improve the feeling in the neighborhood and among homeowners toward the board and ARC.
Author: David Wilson
Articles have been Reprinted with permission from Black, Slaughter, Black.
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