Architectural Review

Most homeowners associations and all condominium associations have provisions in their governing documents for an architectural review committee (sometimes called architectural control committee and abbreviated as ARC or ACC), which is responsible for reviewing and accepting or denying proposed changes to the property within the association’s jurisdiction.  While these areas are community- and document-specific, some generalizations can be made about what might fall within the ARC’s area of responsibility.  In single-family detached subdivision, where owners are responsible for the grounds and structures, the ARC is generally responsible for reviewing and approving any changes to the landscaping (front, back and side yards), fencing, house color or design, additions, and any additional structures (shed, pool, greenhouse, gazebo, windmill, deck, etc.).  For attached townhomes, the ARC likely reviews any exterior additions like flagpoles, satellite dishes* or other permanently affixed or placed items.  In condominiums, in addition to things listed under townhomes, the ARC may also have responsibility for reviewing items inside the units that may affect neighboring units or the common elements like changes to plumbing, installation of flooring, installation of an air conditioning unit, etc.  It’s important for owners to check with the governing documents (and any ARC resolutions) prior to making any changes to their units.

The governing documents for each community outline the basic information about the ARC:  how many members, when a response must be provided by, what types of applications they review.  Many documents give the board the ability to serve as the ARC.  It is also very helpful to have an ARC resolution in place, which can provide much more detail about the process and an application form as well as any items that have been preapproved by the ARC (for example, a certain type of storm door or screen or light fixture).  If there are design guidelines for the community (whether created before or after the developer set the community up), it is useful to include these as well.

One of the things I’ve run into time and time again with ARCs is a misunderstanding about the purpose of the ARC.  The ARC is not responsible for ensuring whatever is built is built properly; the ARC is an aesthetic body only.  It is, however, responsible for ensuring any and all changes made that fall within its jurisdiction are applied for and decided upon.  When this comes into play most is when an owner has made a change to his/her property without obtaining proper ARC approval (usually innocently not realizing he or she was required to do so) and the ARC is satisfied with the change.  Many times, the board and the ARC have felt that since the alteration was acceptable, there was no harm and thus no foul.  However, by not requiring this owner to submit for approval (albeit after the fact), the ARC is potentially revoking its power because it is selectively choosing what it will or will not enforce.  This comes into play when several owners have made acceptable changes to their property without obtaining approval (and without the ARC requiring them to after the fact) and then an owner makes an unacceptable change that the ARC denies and requires the owner to restore things to how they were.  If the owner refuses to do so and can demonstrate that other owners have made changes without approval, the ARC, the board and the association will have little or not power to disallow this owner’s changes.  Certainly if a lawsuit ensued, the outcome for the association would be grim.

Most owners who have made changes to their homes without obtaining approval first simply did not realize that they were required to do so, and most comply immediately with the request to submit (it’s generally easier for them because they can simply complete the form and submit a photo of the finished change).  It is still prudent to give them a written deadline (as is wise in any enforcement proceedings) and follow up immediately after the deadline has passed if no submission has been provided.  Failure to submit an ARC application for a change should be treated like any other rules violation, regardless of the acceptability of the change.  If the owner continues not to submit the required information and the board has adopted a fine resolution, fines should be imposed (after sufficient notice and the right to be heard has been provided to the owner).  While this may seem excessive to some, the board should realize that failure to enforce one section of the governing documents may also hinder its ability to enforce other requirements of those documents.  While it’s unlikely an assessment obligation would be overthrown by the courts due to failing to enforce architectural review standards, it is a possible outcome that would be disastrous to an association.

The other area that ARC’s seem to get into trouble in is when they try to overstep their authority.  ARCs (and boards) should absolutely enforce regulations within their jurisdiction, but should try to avoid compelling enforcement for items that they do not (or do not clearly) have authority over.  I ran into this for one of my clients last spring (a condominium project that was also part of a master association).  Many of the homes were in need of repainting (the initial paint job was failing) and the board was in the midst of negotiating a contract with their desired painting contractor.  In the midst of this, I received a letter from the master association requiring the homes to be repainted (which was already planned for that summer) with an application and a request to submit the paint colors, the application, and a $ 100 review fee.  As it so happened, I had worked on behalf of the master association early in my career as the ARC administrator and compliance enforcement, so I was very familiar with their documents, and so I sent a letter back stating that as the condominium was not altering any of the colors, there was no requirement to submit any paperwork or a fee.  The master association responded that they were now requiring any and all repainting to resubmit and pay the fee, and required again that the condominium provide what they’d previously requested.  Well, that didn’t sit right with me.  It wasn’t about the money (the condo could easily afford the fee) and it wasn’t about the time to put together the paint colors (there were about 40 buildings all painted with different colors so this was not an inconsequential task) but it seemed that the ARC, rightly or wrongly, was overstepping its authority.  The master association and I went back and forth a few more times and in the end they backed down because they did not, in fact, have the authority to require this.  This is important to remember because, if the ARC had insisted and taken the condominium association to court (as unlikely as that seems), they would likely have lost and needlessly spent the association’s money in a frivolous manner (that could then get the board sued - possibly successfully! - for breach of fiduciary duty).

ARCs are a critical component of a successful community and care should be taken to ensure any and all changes within its jurisdiction are submitted and reviewed.  Documentation about those changes and approvals should be maintained for the duration of that change and maybe even for the duration of the association.  ARCs must also be cautious not to exceed its authority or jurisdiction, make all of its decisions in writing and require the same of all submissions to its aesthetic judgment.

* Although many governing documents, especially those written before the mid-90s, limit or prohibit the placement of satellite dishes, FCC regulations (known as the OTARD rule) allow owners to install a dish one meter in diameter or smaller.  ARCs cannot prohibit installation nor require a lengthy approval process.  Dishes must be permitted to be placed in a location with good reception.  For more on how the OTARD ruling might affect your association, please contact the association’s attorney.