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.
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 preferences or opinions and uphold the "spirit" or "original intent of design" for the community, which is no easy task.
In North and South Carolina, the primary source of board member authority to enact and enforce architectural guidelines can almost always be
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!
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.
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.
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
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.
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 lay out 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
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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