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.
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:
Extraordinary Circumstances Exist. Extraordinary conditions might involve geological or topographical conditions on the lot.
Not Disallowed by Governing Documents.
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.)
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.
- 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.
: 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.
: Associations needing legal assistance can contact us
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