Architectural Review

Architectural Review: Protecting the Aesthetics of your HOA Neighborhood (Oregon Law)
March 1, 2009 | By: Jason L. Grosz

Architectural review is a vital part of maintaining the aesthetics and property values in many homeowner associations. Many HOAs have architectural restrictions which protect ocean or mountain views, maintain a pleasing and uniform aesthetic, or prevent owners from allowing their homes to deteriorate. From a practical perspective, this process is often administered by an architectural review committee or “ARC” which is appointed by the Homeowners Association Board of Directors.

Where do they get the authority to tell me what I can build?

The authority of an HOA board or architectural review committee to review plans prior to construction can typically be found in your HOA’s CCRs and bylaws. A common provision might say the following:

“No building, addition, fence, or other structure shall be built or altered on any lot within the Pleasantville Homeowners Association until plans have been submitted and been approved in writing as to the harmony and external design by the architectural review committee composed of three or more representatives appointed by the Board.”

In addition to your CCRs and bylaws, many HOAs adopt architectural rules or restrictions designed to help streamline the process. These rules may provide specific guidelines about what sorts of structures will be approved. For example, there may be limitations on height, color, or setback requirements. Other rules are procedural, outlining a process for submitting plans, obtaining a hearing in front of the committee, or appealing an adverse decision to the Association Board of Directors.

Why is it important to observe your governing documents and rules carefully?

With the recent boom and bust in real estate, architectural review has become an increasingly contentious issue. Many aggrieved owners turn to the court system to resolve architectural review disputes. Lawsuits often arise in two contexts: either (1) an owner receives an adverse decision preventing him or her from building their dream home; or (2) a neighbor of the builder is unhappy with the structure going in next door and seeks to have construction halted. Occasionally, neighbors have sought to have an existing structure torn down for being in violation of the association CCRs.

Architectural review litigation is highly unpleasant, costly and time consuming for HOAs.

What can my HOA do to prevent the disputes and resolve them quickly if they do come up?

1. Establish clear rules: Many CCR and bylaw provisions relating to architectural review are ambiguous. For example: “No home built in the Pleasantville subdivision shall block the ocean view of any other home within Pleasantville.” This provision is inherently ambiguous. What does it mean to “block” the view? Does this mean entirely eclipse any view of the ocean? Or does it mean block the ocean view in even the slightest manner? Provisions like this one are problematic and can lead to lawsuits.

Many HOAs adopt rules or guidelines that clarify or interpret vague architectural review provisions. Carefully drafted rules will sometimes prevent these disputes.

2. Enforce your rules fairly and uniformly: Once your HOA has a clear set of rules in place, it is critical that the board enforce them uniformly and fairly. Members are often more angry about “selective enforcement” than they are about having their plans denied. These owners may argue that the HOA denied their plans based on a set of rules that other neighbors violated without penalty. This is unfair to the members of the association, and can undermine the board’s ability to resolve the dispute. Worse still, it can affect your HOA’s ability to enforce other important rules, such as payment of assessments.

3. Get some help: If you find yourself at a committee or board meeting where tempers flare, get some help. Contact an attorney or other specialist who has experience resolving architectural review disputes on behalf of HOAs. If you do find your association served with a lawsuit, contact your attorney and insurance carrier immediately so that you can protect your HOA’s rights.

Jason Grosz
Attorney at Law