HB 1203 made some major changes regarding architectural review committees. To sum it up, their powers were greatly slashed. Let’s take a look:
An association or any architectural, construction improvement, or similar committee of an association must reasonably and equitably apply and enforce on all parcel owners the architectural and construction improvement standards authorized by the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
So now, the architectural review committee must act reasonably and equitably. I’m not 100% sure what it means, but it certainly means that what applies to one applies to all. It also may mean that even though you have a provision in your ARC standards, if it makes no sense, don’t enforce it just because it’s there.
(b) An association or any architectural, construction improvement, or other such similar committee of an association may not enforce or adopt a covenant, rule, or guideline that:
- Limits or places requirements on the interior of a structure that is not visible from the parcel’s frontage or an adjacent parcel.
- Requires the review and approval of plans and specifications for a central air-conditioning, refrigeration, heating, or ventilating system by the association or any architectural, construction improvement, or other such similar committee of an association, if such system is not visible from the parcel’s frontage and is substantially similar to a system that is approved or recommended by the association or a committee thereof.
In sum, this clearly means two things: (1) stay out of my home. It’s none of your business what I do behind my closed doors, if it has no effect on you. It also means, don’t tell me what to do with the outside of my property, if it has no effect on you.
If the association or any architectural, construction improvement, or other such similar committee of the association denies a parcel owner’s request or application for the construction of a structure or other improvement on a parcel, the association or committee must provide written notice to the parcel owner stating with specificity the rule or covenant on which the association or committee relied when denying the request or application and the specific aspect or part of the proposed improvement that does not conform to such rule or covenant.
In simple terms, this certainly means that you have to tell me what I am being charged with and why I can’t make my requested change. It says that I’m entitled to due process and who can argue with this?
(b) If a parcel owner’s rights and privileges have been unreasonably infringed upon or impaired by a decision concerning the architectural use of his or her parcel or the construction of permitted structures and improvements on such parcel by the association or any architectural, construction improvement, or other such similar committee of the association, the association must provide the parcel owner with the ability to appeal such decision to an appeals committee that consists of at least three members appointed by the board who are not officers, directors, or employees of the association or members of the architectural, construction improvement, or other similar committee of the association. The appeals committee has the right to reverse, modify, or affirm the decision being appealed. A parcel owner may appeal a decision of the association or any architectural, construction improvement, or other such similar committee of the association within 90 days after the owner receives written notification of the initial decision. The appeals committee must make a decision on the issue under appeal within 60 days after receiving a parcel owner’s request for an appeal.
I have to tell you, I didn’t see this bill coming. It is hard enough to get people to serve on your architectural review committee. Now, it may be harder to find additional people to serve on an appeals committee from decisions of the architectural review committee. I’m certainly in favor of giving owners the ability to appeal a decision of the Architectural Review Committee, especially when these decisions have major ramifications about what people can do with their most prized possession and asset. Here’s the problem though. Under the new law, the association must have this appeals committee in place. If the association fails to create such a committee and the unit owner is denied the right of an appeal, it is this attorney’s position that the decision of the ARC is invalid or void because there is no right of appeal where the statute requires same.
An answer to this equation may be to see if those persons who are good enough to serve on the fining committee would also be willing to serve on the Appeals Committee.
In any event, the foregoing changes to the law diminishes the power of the Architectural Review Committee. The theme of this year’s legislation is just that, diminish the power of the board or committees over owners and give owners greater rights to challenge decisions of these boards or committees while at the same time keeping the members of these boards or committees under the microscope and subject to the criminal statutes. We’ll show you some more examples of this next week.
BLOG post by Eric Glazer
