If a construction project is completed with the approval of the ARB and does not conflict with a specific objective covenant provision, then a subjective change in the ARB rules or the approach by the members of the ARB, will not, after the fact, make that construction project a violation. The ARB can make subjective changes to its rules or its approach going forward, but those subjective changes do not have retroactive effect.
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
If the owner relied upon an approval from a Board that was in control at the time, a new Board cannot invalidate that approval. I believe the Board is indeed under an obligation to honor the previous approval.
Mark A. Nappier, Esq
Joye, Nappier, Risher & Hardin LLC
3575 Hwy 17 Business
Murrells Inlet, SC 29576
I’m a bit confused by the question. Let me try to answer this way. If something is in compliance with an ARB rule/regulation/covenant, and then the rule/regulation/covenant gets changed, the thing is grandfathered in unless and until it needs to be changed at which time it must meet the new rule/regulation/covenant. For example, if propane tanks were allowed in backyards behind 5′ fences, but the rule/regulation/covenant changed so as to now require a 6′ fence, the 5′ fence is grandfathered in until such time as it needs to be replaced; at that time, it must be replaced with a 6′ fence. None of the foregoing changes based on who approved what.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Architectural reviews in community associations are often performed by a committee or other entity separate from the governing board. We assume that when you refer to an “ARB” it is an Architectural Review Board. We assume that the Association’s Declaration or Bylaws makes reference to the ARB and defines the scope of its duties, and provides the Board with the right to adopt standards to be used by the ARB in reviewing applications by homeowners. You note in your question that a buffer around a propane tank was approved by the ARB and conformed to the then existing regulations. You want to know whether the owner can be found in “violation” since his buffer no longer complies with new ARB guidelines.
Generally, the answer is no. When the owner installed the buffer he or she apparently obtained the necessary approval. The fact that it was a developer-controlled ARB is of no particular legal significance. In most states the builder controls the association until 75 percent of the homes are conveyed. The concept underlying a formal approval process is that a homeowner can rely on that approval, spend the money to install or construct the approved improvement and have the comfort of knowing that approval is not subject to change. In the law, we would refer to this as a “vested right.” While, in this instance, we may “only” be talking about a vegetative buffer, one can imagine the chaos if, for instance, a homeowner relied on an ARB approval to install an in-ground swimming pool at great expense and then was told that the board had changed the ARB guidelines so that the pool was no longer permitted in its current location. Courts would not support such an arbitrary result and homeowners would always be in fear that their approved application was later subject to change. The owner has the same right to rely on the ARB approval whether or not the ARB was developer controlled at the time.
J. David Ramsey
Becker & Poliakoff
1776 on the Green
67 Park Place, Suite 702
Morristown, NJ 07960
Yes. The ARB would need to honor approvals provided by the prior ARB, regardless of whether that ARB was under developer or member control at the time of approval.
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
The short answer here is that in almost all circumstances the HOA is going to have to honor prior architectural approvals. Not doing so would be like the local zoning department or planning board coming to your house and demanding that you upfit your home to meet the latest building requirements even though your house met all requirements at the time it was built.
David C. Wilson
Black, Slaughter & Black , P.A.
1927 S. Tryon St., Suite 100
Charlotte, NC 28203