QUESTION: Can the board of directors overrule an architectural committee's approval of a homeowner's application?
ANSWER: Depending on how the committee is structured by your governing documents, an architectural committee either (i) makes recommendations to the board or (ii) has direct authority to approve or disapprove applications. In either case, the board has final say in architectural matters.
Board Options. In the first instance, the architectural control committee (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 decisionmaking authority, the board still retains control via four avenues.
1. 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 authority to reconsider and reverse ARC disapprovals.
2. 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. (See case law.)
3. 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.)
4. 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 violation of the CC&Rs, the court will likely side with the ARC.
Developer Control. Department of Real Estate Regulations permit 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 final say on architectural matters during the initial period of construction, marketing and sale.
Recommendation: Make sure your association has clear architectural standards with application requirements, notice and review periods, rejection guidelines and, if appropriate, a reconsideration procedure. Where an architectural committee goes off the rails and makes decisions contrary to the governing documents, the board should immediately seek legal counsel.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.