Architectural guidelines, review, and enforcement are undoubtedly some of the more confusing and contentious responsibilities of volunteer community leaders. Though reviewing applications, approving or denying them, and enforcing the guidelines may sound straightforward, many things must be considered when reviewing architectural-related matters in your community. Remaining knowledgeable about state laws, intimately familiar with your governing documents, and sticking to some best practices will help board members rest assured that they're acting in good faith each time a request is submitted.
What/Who is the ARC?
The Architectural Review Committee (ARC), sometimes called the Architectural Review Board (ARB), is tasked with managing and enforcing the rules and restrictions in the governing documents, which most often relate to any exterior modifications to the property. The ARC/ARB may be comprised of separate volunteers, or it may be a role fulfilled by board members in addition to their other duties. An important distinction to understand is that the ARC/ARB are not "the taste police". They must enforce the guidelines without inserting personal preference or opinions and uphold the "spirit" or "original intent of design" for the community, which is no easy task.
Architectural Control & Review Authority: Where Does it Come From?
In North and South Carolina, the primary source of board member authority to enact and enforce architectural guidelines can almost always be found in the Declaration, Covenants, Conditions & Restrictions (CC&Rs), or Master Deed. These documents will lay out what body – the board or a board-appointed committee – has the authority to approve or deny architectural requests as well as enforce ARC guidelines. Further, the governing documents should also address members' appeal rights and the process that must be followed.
What types of improvements or changes are governed by the ARC? It varies for each association and ranges from new construction (homes, patios, roof replacement) to playsets, landscaping and even types of plants installed in yards. In some instances, the ARC guidelines may only extend to compliance with the specifications outlined in the association's governing documents; therefore, the reviewing body may only consider approving or denying requests based on compliance. In other cases, the rules and restrictions may include permissible locations or screening for trash cans or utility appliances (e.g., HVAC or gas tanks). In any event, board or ARC members should carefully read through their governing documents to understand what is and isn't covered.
So, where do these guidelines come from? When the association was first formed, it likely included a set of ARC guidelines within the governing documents or as a separate appendix of rules and regulations. While board members (or the ARC/ARB) are granted authority to adopt or change guidelines, those guidelines MUST always have a firm basis in the governing documents. It is critical to avoid the pitfall of writing rules to solve complaints, even if those rules are common elsewhere, without first verifying the underlying support in the governing documents. Either way – and yes, we're going to say this a lot here – consult your governing documents!
What Is Typically Included in the ARC Guidelines?
Simply put, they serve as a guide for association boards and members and are not enforceable on their own. What does this mean? You typically cannot cite an owner for a violation based on the ARC guidelines alone – you'll need a provision within the CC&Rs to back you up.
Guidelines cover various things, from how applications should be submitted, what information must be included, and what proposed changes are likely to be approved. Remember, the guidelines serve a purpose for both board members and owners. How? They allow for consistency in that the board is requiring the same submission documents from all members and therefore can't be accused of playing favorites and, for members, it makes the submission process easier as they have clear information on how to make the submission as well as examples of what they may and may not do when altering their properties.
Another caveat for board members: don't mix up the ARC guidelines with the association's rules and regulations (the use restrictions). They don't cover the same types of issues that may arise within the association. For example, an ARC guideline may determine what a trashcan enclosure must look like, whereas the rules and regulations would determine how long it can be left on the street after trash pickup.
Best (and Worst) Practices for Considering ARC Applications
If we've sent those of you on ARC committees running for the hills, stop and take a breath! Some general best practices your board can follow will help streamline the application, approval, and denial processes.
- Include procedural requirements for submissions within your guidelines. As we said before, this will be infinitely helpful to both your board and community members. Specify what submissions need to include – documents, photos, plans, etc. These procedures reduce the need for constant back-and-forth and will streamline the process. And, once you've come up with a procedure for submissions, stick to it!
- The approval timeline is usually specified in the covenants, and decisions MUST be made in accordance with the timeline. Allowing a request to languish without any official response places the association at severe risk of liability due to inaction. It is one of the most common legal scenarios for associations faced with lawsuits.
- Have regular discussions about submissions. Board or ARC members must keep up with the applications they've received by meetingregularly. How often should you meet? The frequency will depend on how large your association is, how many applications you receive, things like that, but monthly meetings are typically a good place to start. Ensure that the committee has clear guidelines for discussion and voting. The management company will take instruction from the committee chair directly with the understanding that the chair represents the committee's decision.
- When in doubt, reach out to professionals. Not sure if a certain restriction in your governing documents can be applied to the shed you're considering denying? Call your attorney! It's part of your fiduciary duty to the association to seek professional advice when needed and, if the association gets taken to court over what a member sees as an arbitrary denial, you'll have a better chance of winning if you've done your due diligence in consulting professionals. Review of applications for new construction may be delegated to an architect, and the costs of review are usually included in the application process for the owner.
- Provide clear, thorough responses to applications. This may sound like a no-brainer, but with the text-heavy world we live in, sometimes it's hard to remember that text-speak isn't appropriate for every situation. Respond to applicants in complete sentences using clear language and thoroughly explain the basis for a denial. What if a submission may be approved if it is altered a bit? Don't flat out deny it – explain to the member that if they make certain changes, their request may be approved. In some instances, you may even grant a conditional approval – i.e., if you change the paint color to white, we'll approve your fence – but be careful if you decide to do that.
- If variances are considered, be sure to consult with the association's attorney. Likewise, applications that deviate from the rules but are based on precedent should also be discussed with the attorney. While common sense should ultimately prevail, a professional's input will give the ARC confidence that they are making the right decision and protect the members from claims that may arise from their decision.
- Don't deviate from the submission requirements you've established. For example, discussing an application with a member via text (we all know how difficult it is to interpret someone's tone in a text message) can lead to confusion and cause a big mess you'd rather not clean up. Further, if you typically require all members to submit photos with their applications but don't require one from your best friend Kramer, who lives next door, you may be accused of playing favorites.
- Don't arbitrarily deny applications or make sweeping generalizations. An example of this would be "We would never approve XYZ!". Unless XYZ is explicitly prohibited in the governing documents, that isn't a statement board or committee members should make because there might be a way to approve the request.
- When applications are denied, don't make members play the guessing game. Instead, provide a detailed explanation regarding why the application was denied and, when possible, provide suggestions on how the application could be changed to reach approval.
- ARC members should be wary of offering their personal opinions when informally discussing a request with an applicant. This almost always leads to assumptions that the request will be approved, resulting in disputes if a different decision is ultimately rendered.
So, what if you have a scofflaw on your hands? What do you do? Associations have a few options if a member refuses to comply. Administrative options include holding hearings, levying fines, suspending amenity privileges, or placing a lien on the offender's home. In North Carolina, the association's powers regarding administrative options can be found in NCGS 47C & 47F and the governing documents. In South Carolina, they're only found in the governing documents.
In certain instances, it may be necessary to force the violator to stop work if they begin construction before approval. For example, the association may ask an attorney to issue a cease-and-desist order, which can often be executed within a very short time for urgent circumstances. This has important implications because there are costs to the owner if their contractor has to pull off the job; however, this action may save them money if the association could not approve their application under any circumstances due to flagrant non-compliance with the covenants.
There is another option to attempt to force compliance from a member after the change has been made: self-help. What is that? In a nutshell, it typically involves going on to the member's property and removing whatever the violating item may be. Though this may be an option under your governing documents, it is strongly advised that boards and committees do not pursue this route unless attorney guidance has been sought. Not only could it be potentially dangerous, but with no court backing, the association may find itself on the losing side of a court case.
If you've come across a member who doesn't care about fines, privilege suspensions, or anything else you've tried, involving the courts will be your best bet. Obtaining an enforceable court order will compel the member to come into compliance, and you'll have the law on your side, allowing you to rest assured that you've handled everything appropriately and fulfilled your duty to the association.
Special Considerations & Things to Avoid
As we've discussed before, board members need to be familiar with the provisions of the FHA and ADA. Why? Because both of these acts layout actions that can be considered discriminatory. The ADA allows people with disabilities to request reasonable modifications and accommodations. How does this relate to ARC? Let's say a disabled person needs to install a wheelchair ramp on the front of his home or widen his driveway. Though these things may go against the aesthetic standards of your community, they are reasonable modifications. Therefore, they must be allowed; however, the association may impose conditions with the approval.
Many governing documents provide a timeline for approval or denial of architectural applications – this is often 30 days but will vary between associations. Further, many documents state that if approval or denial isn't issued by the 30-day mark, the application is considered automatically approved. This is why having a clear set of submission guidelines is key – members know what they must include with their applications. If any items are missing, the 30 days doesn't begin until everything is provided and the request is considered complete. Either way, don't delay action on architectural requests; most of the time, it will only cause your board extra stress.
Lastly, and this probably goes without saying, don't play favorites or act with bias. With each submission, the board must clearly articulate the reasoning behind its decision. This reasoning must be fact-based, rational, and show that the decision was made in good faith and consistent with similar requests. So, sorry, even though Newman down the street likes the NY Knicks, and you can't stand them, you can't deny his new fence based on that.
We've given you a lot of information here, but it isn't all that complicated if you cut it down to the basics. First, read your governing documents thoroughly – so thoroughly as if you might be quizzed on them later. Second, use common sense – don't play favorites (or even appear to be playing favorites) and don't issue arbitrary denials. Finally, be sure you have a set of standard guidelines for application submissions and what will and will not be approved and provide these to each member. This will make the whole ARC process go much more smoothly and thus keep your community the pleasant place everyone would like it to be.
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