Court Rules Unilateral ARC Decision is Not Valid

Declaration provided from the creation of an Architectural Review Committee (“ARC”) consisting of at least 3 members. If no committee was appointed by the Board, the Executive Board would perform all duties of the ARC. During period of Declarant control, the Declarant would appoint the ARC members.

The Declaration also set forth the powers of the ARC, which included the approval of plans for building and site improvements, and a provision stating that if the ARC failed to approve or disapprove a request within 45 days after required plans and specifications have been submitted, the approval will not be required. The Declaration also contained provisions concerning the construction of fences, and required that the design, placement, and materials of any fence had to be approved by the ARC.

The fence requirements were modified by Design Review Guidelines (“Guidelines”) that were adopted by Association in 2014, and which addressed the types of fencing that homeowners would be permitted to construct on their lots. The Guidelines stated:

  • In order to maintain views, fences were discouraged.
  • ARC could approve some fencing upon petition by an owner for unique reasons (i.e. provide enclosed area for a dog),
  • ARC has sole discretion over size, materials and location of fencing.
  • A 4’ solid fence for sole purpose of privacy would be permitted.
  • Maximum height for any fence set at 5’ and any fence over 4’ must be a picket style fence.

In 2015, after Owners constructed a wooden fence on their property that exceeded the height limitations specified in the Guidelines, Association notified Owners that they were in violation of Association’s Declaration by construction a fence without first submitting an application to the ARC. Subsequently, ARC demanded that all work on the fence be discontinued until the required forms were submitted to the ARC and the request is approved. Owners thereafter submitted an application to the chairman of the ARC seeking approval of the fence. A few weeks after submitting the application, Owners received a letter from the chairman which stated that the ARC has determined that Owners acted in violation of the Guidelines and no variance would be granted for their fence. The letter also granted Owners 30 days to bring the fence into compliance with the Guidelines.

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