Variance
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ARCHITECTURAL VARIANCE

The Court of Appeals in Cohen v. Kite Hill discussed the practice of granting architectural variances. It noted that,
With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: "The business and governmental aspects of the association and the association's relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors.... This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing." (Cohen v. Kite Hill Community Assn (1983) 142 Cal.App.3d 642, 651.)
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 Variance. As a rule, any significant architectural variances may be granted by an architectural committee only if:

  1. Extraordinary Circumstances Exist. Extraordinary conditions might involve geological or topographical conditions on the lot.

  2. Not Disallowed by Governing Documents.

  3. Notice 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.)

  4. Notice Given to Board of Directors. 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.

  5. Notice Given to Building Department. If the variance involves setbacks or Building Codes, notice must be given to and approval granted by the applicable city or county building department.
Recommendation: Boards have a duty to enforce their governing documents and should be cautious about granting variances. When faced with such decisions, boards should seek legal counsel before granting variances.

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