One of the central roles of a homeowners or condominium owners association is the enforcement of architectural standards. The establishment of architectural standards is at the core of many declarations of covenants, conditions, and restrictions (CCRs or “declaration”). Owners want to know that nobody will build a monstrous pink house next to them.
Many declarations stipulate a few specific prohibitions and then delegate the authority to approve all new construction of improvements to an architectural control committee. In an informal association, the architectural control committee, or ACC, may well be made up of the entire board. Other more organized associations allow for appointment or election of a separate ACC, with separate meetings, rules of procedure and term limits.
No matter how organized, any ACC will benefit from following some standard principles of good HOA governance:
- Adopt clear guidelines
- Adopt written rules of procedure
- Apply the rules even-handedly
Adopting Clear Guidelines
While some declarations contain very specific restrictions on what can be built, it is difficult for a written document to cover every contingency and variation that the human mind is capable of inventing. There is usually a role for the ACC to specify how restrictions are going to be applied.
When drafting guidelines, it is important that an ACC not overstep the bounds of its power. Some declarations are much less far-reaching than others. Any time an ACC adopts a specific regulation, it should be able to point directly to a section of the declaration that gives the ACC the power to review that specific improvement. Even if the declaration broadly states that “the ACC must approve all improvements to the property for aesthetic consistency,” the ACC should be sure that the definition of “improvements” includes the item to be reviewed. An attorney can assist with these questions.
If an ACC is following its declaration, it is empowered to make aesthetic decisions and enforce those decisions. Having clear written guidelines will reduce challenges to ACC decisions and will show that the ACC has acted fairly.
Adopting Written Rules of Procedure
Your ACC may be required by statute to follow certain procedures before it can enforce restrictions or seek an injunction. It varies from state to state. However, any community will benefit from having clear procedures for seeking and obtaining ACC approval of improvements.
These procedures should spell out everything that an owner might need to know in order to seek ACC approval, or in order to challenge an ACC decision. Timelines for submitting an application and receiving a response should be clearly spelled out. Any formal requirements, such as specific information required to complete an application, should be included.
As in any situation where the HOA is exercising its judgment and enforcement powers, the owners should be given a right to be heard by the ACC or even the full board. The more robust and fair the process is within the association, the more likely a court will honor the discretion of the ACC. In one case (this was in Idaho), the court refused to hear an owner’s challenge to the ACC because the owner failed to follow the ACC’s published process for appeal to the board. When a court defers to the ACC, the association benefits and potentially saves court costs and attorney fees.
Finally, having rules of procedure in place is not as effective if the rules are not written down, or if they are written down but inaccessible to the owners. While an ACC should not necessarily be in the business of publishing every decision it makes, it certainly should publish the rules that it follows. Many times these rules can be adopted by a simple vote of the ACC itself. Other times, the board must adopt all rules and guidelines.
Applying the Rules Even-Handedly
When considering a new application, an ACC is not required to follow prior decisions of the ACC regarding other properties. There is no precedent-setting function in an ACC. However, if the ACC has failed to consistently follow its own written rules and procedures, a court is less likely to uphold the ACC’s decision and authority. Nothing is more likely to catch a judge’s attention than facts showing that the ACC is picking on any one individual and not following its rules consistently.
One suggestion to ease the burden of the ACC is to separate the ACC’s review functions from any enforcement reporting roles. Rules and policies should be drafted so that the ACC’s role is to review the facts presented to it in a complaint, not to scour the neighborhood for offenders. If the ACC responds in a consistent manner to all complaints that it receives, its members may fulfill their duties to the association without worrying about any unreported violations that may still exist.
Even a well-intentioned and cautious ACC will, from time to time, find itself at loggerheads with disgruntled owners. Either an owner will claim the ACC is overreaching, or an owner will try force the ACC to jump into battle with his neighbor over a disputed improvement. In any such situation, it is much easier to deal with owner concerns if written standards are already in place. Adopting them at the moment they are needed can be too late.