Oh No, Not in my Neighbor’s Back Yard!

Architectural review is serious business for an association board. One of the important attributes of any type of planned unit development is its high standard for uniform construction, design and aesthetics. People choose to live in planned communities for this very reason. As an association board, you play a vital role in enforcing and maintaining these standards, often with the help of an architectural committee.

How should you, as a board or committee, approach the process? Your governing documents, along with pertinent California statutory and case law, will provide the framework for you to follow.

One owner wants to remove structural walls in his remodeling. Another wants an elaborate arbor built over her backyard. Yet another seeks to add a koi pond. What to do?

You may be tempted to reject all proposed additions or remodels, just to keep things simple and uniform, and to satisfy neighbors who oppose the improvements. Yet blanket rejections are as irresponsible as a laissez-faire acceptance of every proposed change. Every proposal should be considered on its own merits. You have a duty to protect property values. Remodeling and making improvements can preserve and increase those property values, when they are done correctly. To protect against shoddy work and unsightly changes, request an appropriate expert’s stamp of approval from a structural engineer, architect, or koi pond expert, whatever the case may be. A mock-up of the arbor, structural calculations on the wall removal, a photo of a similar koi pond—all can do wonders in assuring a quality improvement. Modifications of the requested improvement can be suggested and approval can be made contingent on such changes. Let the owners know your concerns, and those of their neighbors, and engage in a give and take process when discussing whether to grant architectural approval.

If your committee is made up of board members, be careful not to conduct your architectural review behind closed doors, or on an ad hoc, over-the-phone or email basis. Under Corporations Code §7211, when a committee constitutes a “committee of the board”, the notice and quorum requirements for board meetings also apply to the committee. This means that your discussion of the application, as well as your vote, should all take place at an open noticed meeting. Whatever you do, don’t ignore or “back burner” an application that you have received. A lack of response from the architectural committee may be deemed to be an approval after a certain amount of time, depending on your governing documents.

Having a step-by-step procedure in place for all architectural review applications is advisable. California law requires that the decision of the committee and/or board must be made in good faith and may not be unreasonable, arbitrary, or capricious. It may not violate any applicable codes, such as building codes, land use, or public safety provisions (Civil Code §4765).

A written decision should be issued. What if the owner is unhappy with the decision? Your governing documents are required by law to include an appeal procedure that is “fair, reasonable, and expeditious” and “provides for prompt deadlines.”

Owners are typically quite invested, both financially and personally, in the architectural changes that they propose. As a board, recognize this fact. The appeal process and hearing can be emotionally charged. The more controversial the issue, the more important it is for the board to follow proper formal procedure. Owners will appreciate the fact that you are taking their proposals seriously and giving them due consideration. If your governing documents do not contain the roadmap for the architectural committee and board to follow, including prompt deadlines and a maximum time for response, then it is time to add such a written procedure. Not only is it mandatory that it be included in your documents; it is also mandatory that a copy of the procedure be provided to the owners on an annual basis [Civil Code §4675(a)(1) and §4675(c)].

You are not likely to please everyone every time with your architectural review decisions, but all parties involved will appreciate an orderly, professional, and legal process, and the fact that the decision has been made within such a context.      

Sharon Pratt is the managing partner of Pratt & Associates in San Jose, California. She is a specialist in common interest development law and litigation and has been practicing in the San Jose area for 28 years.