ARCHITECTURAL PROCEDURES & GUIDELINES

Architectural Committee Name and Members

An association's architectural committee is referred to by many different names. Despite the variety of names, all architectural committees have the same general purpose, as described below. Following are some of the names:

• Architectural Committee (AC)
• Architectural Control Committee (ACC)
• Architectural & Land Control Committee (ALCC)
• Architectural & Landscape Review Committee (ALRC)
• Architectural Review Committee (ARC)
• Art Jury
• Design Review Committee (DRC)
• Environmental Control Committee (ECC)

Board Serving as Architectural Committee. If an association's governing documents do not call for an architectural committee, then none is required and the board can review and approve architectural submittals. If the documents call for the appointment of a committee and the committee is empowered to make architectural decisions. The governing documents normally establish the number of committee members, whether they are appointed or elected, and the committee's powers. If the board fails to appoint a committee, then it takes on the role of the committee. Associations should amend their CC&Rs so the board automatically becomes the architectural committee in the event no committee members are appointed. Doing so should eliminate potential challenges to decisions made by the board in the absence of a committee.

Developer Control of ARC. Department of Real Estate Regulations permits the developer to control the architectural review and approval process for a stated period of time and that time is quite lengthy in the case of a master-planned community. The DRE recognizes the value of giving the developer the final say on architectural matters during the initial period of construction, marketing, and sale.The structure and composition of architectural review committees during the early years of a subdivision when the development is under developer control is purely a creature of the Department of Real Estate's Regulations which state (Regulation 2792.28(b)) that until 90% of all of the subdivision interests are sold or five years have elapsed from the date when the original final public report was issued, the subdivider [not the "subdivider in its capacity as a director or directors of the association] may appoint a majority of the members of the ARC. That same regulation begins by saying that until the first anniversary of the issuance of the original public report the subdivider may appoint all of the members of the Committee. Subparagraph (c) states that after the first year and until the 90%-five year thresholds are met, "the governing body of the Association [i.e., the Board] has the authority to appoint one of the members of the ARC."

Architectural Fees. Boards may impose architectural fees to defray the costs of reviewing plan submittals. (Civ. Code § 5600.) This includes copying costs and other expenses associated with the review, such as the cost of a consultant or architect to assist the board or architectural review committee.

Purpose of Architectural Committee

The general purpose of an architectural committee is to ensure compliance with architectural standards established by the association. In condominium developments, the architectural committee is primarily focused on internal (i) alterations and improvements that impact the common areas (ii) window treatments that are visible from the outside, and (iii) balcony and patio issues. In planned developments, an architectural committee is primarily concerned with exterior aesthetics. Following is a chart of the kinds of issues that a committee would regulate.

Approval-Disapproval Procedures

Associations must adopt written procedures for reviewing architectural applications, which must be included in the association's governing documents, i.e., the rules and regulations or architectural guidelines. (Civ. Code § 4765(a)(1).) The procedures should include information about committee meetings and records of written decisions, whether in minutes or otherwise. 

1.  Deadlines for Decision. In reviewing and approving or disapproving a proposed change, the association must provide a fair, reasonable, and expeditious procedure for making its decision. The procedure must be included in the association’s governing documents and must provide for prompt deadlines. The procedure shall state the maximum time for response to an application or a request for reconsideration by the board. Many sets of CC&Rs provide for automatic approval of the application if a decision is not made within the alloted period of time. Even so, missing a deadline is not always fatal. See Fox v. Corniche Sure Mer HOA.

2.  Disapproval Procedure. Architectural decisions must be in writing. If an owner's application is disapproved, the board or architectural committee must include an explanation for the disapproval. (Civ. Code § 4765(a)(4).) If an application is disapproved, notice to the owner must include a description of the procedure for appealing the decision to the board of directors.

3.  Appeal - Reconsideration. If an architectural submittal is disapproved by the architectural committee, the applicant is entitled to reconsideration by the board at an open meeting. Reconsideration is not required if the decision is made by the board or a body that has the same membership as the board, at a meeting that satisfies the requirements of Article 2 (commencing with Section 4900) of Chapter 6. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 5905. (Civ. Code § 4765(a)(5).) Boards should establish a reasonable time limit in their written procedures for appealing an architectural decision. If an owner fails to file an appeal within that time period, he/she loses the right to appeal. The appeals period should run from the time the written notice of disapproval was transmitted to the owner.

Good Faith Decisions. “It is a settled rule of law that homeowners' associations must exercise their authority to approve or disapprove an individual homeowner's construction or improvement plans in conformity with the declaration of covenants and restrictions” and that they must do so in good faith, consistent with their fiduciary obligations to the homeowners. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-51; see also Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 383.)

Enforceable Operating Rules. Architectural Guidelines are enforceable operating rules. (Civ. Code § 4355.) Unrecorded architectural guidelines and rules are enforceable. (Rancho Santa Fe Assn v. Dolan-King (2004) 115 Cal.App.4th 28; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965; Clear Lake Riviera Community Assn v. Cramer (2010) 182 Cal.App.4th 459.)

Granting Variances

The Court of Appeals in Cohen v. Kite Hill discussed the practice of granting architectural variances. It noted that: "Although the Declaration vests "sole discretion" in the Committee and allows for reasonable variances, their decisions must be "in keeping with the general plan for the improvement and development of the Project," and of course, must be made in good faith and not be arbitrary." (Cohen v. Kite Hill Community Assn (1983) 142 Cal.App.3d 642, 651, 654.) The Court analogized the granting of an architectural variance to the administrative award of a zoning variance by a city or county.

In the zoning context as well as here, a departure from the master plan in the Declaration stands to affect most adversely those who hold rights in neighboring property. Hence, what the California Supreme Court has stated with regard to judicial review of grants of variances applies equally well to the Association's actions herein: "[C]ourts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518 [113 Cal.Rptr. 836, 522 P.2d 12].) For nearly identical reasons, we conclude that the courts must be available to protect neighboring property interests from arbitrary actions by homeowner associations. (Cohen v. Kite Hill Community Assn (1983) 142 Cal.App.3d 642, 652.)

Conditions for Granting a Variance. As a rule, any significant architectural variances may be granted by an architectural committee if:

• Extraordinary conditions might involve geological or topographical conditions on the lot.
• It is not disallowed by boverning documents.
• Notice is given to surrounding owners:  “If approval of the application would be a deviation from accepted guidelines, the association is probably required to provide notice to affected owners (e.g. neighbors within a certain distance of the lot), just as a local governmental entity is required to notify neighbors when it considers an application for a zoning variance. See Cohen v. Kite Hill (1983) 142 CA3d 642.” (Advising California Common Interest Communities, Curtis Sproul and Katherine Rosenberry, Continuing Education of the Bar, 2012 §6.18, p. 404.1.)
• The board must be given notice of any significant variances so it can seek legal counsel and then modify or veto the variance if appropriate.
• If the variance involves setbacks or Building Codes, notice must be given to and approval granted by the applicable city or county building department.

Board Has Final Architectural Decisions

Depending on how an architectural committee is structured in an association's governing documents, it either (i) makes recommendations to the board or (ii) has direct authority to approve or disapprove applications. In either case, the board has the final say in architectural matters. In the first instance, the ARC makes recommendations to the board, which directors can accept or reject. The board makes the final decision. If the governing documents give the architectural committee independent decision-making authority, the board still retains control via other avenues.

Reconsideration. The first is when the ARC disapproves an application, the applicant can appeal to the board for a reversal of the committee's decision. By statute, the board is given the authority to reconsider and reverse ARC disapprovals. (Civ. Code § 4765(a)(5).)

Override ARC Decision. Where a committee's decision is contrary to the CC&Rs (such as approving a structure in the setbacks), the courts have made it clear that CC&Rs control. Thus, boards can override an ARC approval so as to comply with the association's governing documents. [An owner built a deck and hot tub in an easement area. He did so with the permission of the architectural committee but in violation of a CC&R prohibition. The board ordered their removal. The owner refused, even though the association offered to pay for the removal. The court concluded that the owner violated the express prohibition in the CC&Rs and the architectural committee did not have the authority to approve a violation of the CC&Rs. (Woodridge v. Nielsen.)]

Replace Committee Members. Nearly all documents provide that ARC members are appointed by the board. If the ARC refuses to reverse a decision, the board can remove committee members and replace them with members in line with the board's wishes. (If committee members are elected by the membership, the board cannot remove them and will need court intervention.)

Seek Court Order. If the ARC cannot be removed by the board, it has the option of going into court for an order reversing the ARC's decision. If, however, the disagreement between the board and the ARC is one of aesthetics rather than a violation of the CC&Rs, the court will likely side with the ARC.

Building Department Approval and Code Compliance

Building permits are required whenever a structure is erected, constructed, reconstructed, moved or altered. (California Building Code §108.4.1.) Because an association's architectural committee and a city/county building department are separate jurisdictions, an owner must separately get approval from each. Obtaining a building permit from the city does not confer approval by the association. An owner must separately submit plans to and receive approval from the association and vice versa. Ensuring compliance with state and local building codes is not a duty of an association or its architectural committee. Board and committee members are volunteers. Unless a member is an architect or former plan checker, board and committee members have no expertise in building codes and no jurisdiction over their enforcement. Code compliance is the duty of the city or county building department, whichever one is applicable.

Architectural Guidelines Defined

Members have the right to improve their properties subject to the governing documents and applicable law. (Civ. Code § 4760.) Associations can, however, impose reasonable architectural review procedures. Architectural Guidelines also called "Architectural Standards," "Design Rules," etc., establish an association's policies and procedures for alterations, modifications, and improvements to an owner's property, common areas, and exclusive use common areas. Guidelines often include subjective aesthetic considerations. Architectural standards provide details to matters that may or may not be covered in the CC&Rs. For example, the CC&Rs may not cover paint colors or acoustical standards, but both can be included in the architectural standards. Maintaining the architectural integrity of the development has been recognized by the courts as an important function of an association.

Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. (Dolan-King v. Rancho Santa Fe.)

Another important function of the Association is to preserve the aesthetic quality and property values within the community. (Cohen v. Kite Hill.)

Because associations are responsible for the common areas and because CC&Rs prohibit alterations to the common areas without prior approval of the board of directors or an architectural committee, boards should adopt written architectural guidelines. These guidelines can be incorporated into the Rules and Regulations or stand alone architectural standards. Architectural standards are developed and approved by the board of directors. Adopting or amending architectural standards is considered an operating rule change that requires 28 days' notice to the membership before it can be adopted. See procedures for adopting rules.

Aesthetic Standards. One of the functions of an architectural committee is to make subjective decisions about aesthetics. This is a recognized function of the committee and their decisions on such issues control even where an owner may strongly disagree.

"attractiveness" and "artistry" are, like beauty, well within the eye of the beholder. fn. 11 Such qualities have never been measurable or quantifiable. Therefore, we conclude as a matter of law the Association and its subordinate entities maintain the power under their enabling covenant to apply both subjective and objective criteria when evaluating the merit of proposed improvements to covenant property. (Clark v. Rancho Santa Fe Assn. (1989) 216 Cal.App.3d 606, 619.)

…where the record indicates the Art Jury and Board acted within the authority granted to it by the Covenant, pursuant to a reasonable investigation, in the best interests of the community and not in an arbitrary manner, we will respect and uphold their decisions. …The Board’s action upholding the Art Jury's decision was also well within its discretion and authority. The Board is empowered to rely upon the Art Jury's recommendation. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 979-980.)

...an evaluation of a proposed solar energy system--just as any other proposed improvement--would involve the consideration of aesthetics. (Tesoro Del Valle Master HOA v. Griffen (2011) 200 Cal.App.4th 619, 633.)

Content of Architectural Guidelines

An association's architectural standards should include the following:

• Standards. Condominiums and townhomes should establish acoustical standards for items such as hard surfaced flooring, higher standards for plumbing fixtures (brass angle stops, braided supply lines, etc.), submittal of plans for major remodels, etc. Planned developments should have written standards for paint colors, roofing materials, fencing, landscaping, etc.
   
• Remodeling Agreement. Remodeling agreements are important for condominiums and planned developments alike. The agreement is signed by the owner and describes the scope of work, limits the owner to work approved by the board (or Architectural Review Committee), makes the owner responsible for damage to common areas, requires licensed and insured contractors, requires building permits, sets a deadline for completion of construction, contains and indemnity provision, etc.
   
• Contractor Rules. Contractor rules (and fines against the owner for rules violations by his contractors) should include items such as restricting work on holidays (define which holidays), defining hours when work may occur, etc.

Condo vs. Planned Development ARC Priorities

Condominiums. Condo architectural committees care about alterations inside your unit because everything surrounding your cube of air is owned in common. That means you cannot change the structure without getting the association's permission. Alterations to plumbing and electrical lines are also restricted because they can dramatically affect neighboring units. Thus, approval by the association is required.

Planned Developments. Planned developments are not interested in what you do inside your house. Instead, they care a great deal about exterior appearances. As a result, they regulate the color of paint you use, your fences, doors, windows, garage doors, landscaping, tree houses, and anything else that can be seen from the street or by your neighbors.

Hybrids. Townhouse developments can be a bit confusing. A townhouse is a form of construction, not a form of ownership. Townhomes can be legally structured as condominiums or as planned developments. If structured as condominiums, homeowners might own air space or the entire structure, depending on how it is defined. Similarly, maintenance might be defined narrowly or expansively. It is not uncommon for a homeowner to own the structure, but the association is in charge of painting and roof repairs.

Whether a townhouse is a condominium or a single-family home, the association controls the exterior structure. In all cases, the association can specify the type, color, and quality of windows, garage doors, and front doors used by homeowners when they upgrade.

Architectural Annual Disclosure

Associations must annually notify members of any requirements for association approval of physical changes to their property. The notice must describe the changes that require association approval and include a copy of the procedure used to review and approve or disapprove a proposed change. (Civ. Code § 4765(c).)

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