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Appealing an architectural review (HOA) question

11,021 Views | 51 Replies | Last: 2 mo ago by elizabeth_akin
Goodnight Irene
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10:00a, 9/12/22
AG
I submitted a request to my ACC to expand an existing detached garage by building an attached casita. It was denied and they quoted the restriction about outbuildings where it states all need to approved and casitas/guest houses are discouraged which they have always interpreted as none will be allowed.

I appealed and wrote a pretty lengthy letter arguing why I believe that their reason for denial was not in accordance with the spirit or intent of our governing docs. They denied again a week later with the same reasoning but I pushed for a site meeting with reps from both the board and the architectural committee as part of the appeal process. They granted and we met in mid July to discuss. I finally heard back from them yesterday, around 60 days after the meeting.

So my question is- does the 30 day response requirement also apply to the appeal?
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MS08
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10:46a, 9/12/22
AG
Each of their previous reviews and denials happened with expedience. I imagine the site visit was more of an exercise to honor your persistence and for them to be able to further support their "no." Looks like you will have to move on from the idea. This is the downside of ACCs and HOAs.
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Diggity
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In reply to MS08 • 10:55a, 9/12/22
AG
agreed
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Goodnight Irene
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11:07a, 9/12/22
AG
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine
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Goodnight Irene
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In reply to MS08 • 11:08a, 9/12/22
Ol_Ag_02
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In reply to Goodnight Irene • 9:04a, 9/18/22
AG
Goodnight Irene said:
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine


At the end of the day these are people that volunteer in prefer to get to tell their neighbors what they can do with their own homes.

These are not likely the kinds of people that like to relinquish "power" and change their minds.
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one MEEN Ag
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In reply to Goodnight Irene • 10:29p, 9/18/22
AG
Your only option is to sue. I'm no lawyer, but I have an issue about with the word 'discouraged' used here. It the HOA bylaws meant banned, they would have said it.

I would argue they've met their 'discouraging' bar by denying and you appealing. On the final appeal they should have granted it then.
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Goodnight Irene
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In reply to one MEEN Ag • 1:54p, 9/19/22
AG
My exact complaint, they are saying discourage means none. And it actually doesn't say casita, it says maids quarters and guest houses are discouraged. So they have added casitas to their interpretation as well.

And the cc&r also states they are to use a liberal interpretation when enforcing the covenants
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Diggity
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In reply to Goodnight Irene • 1:59p, 9/19/22
AG
no skin in this game, but how is a "casita" different from a "guest quarters"?
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Ol_Ag_02
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In reply to one MEEN Ag • 2:10p, 9/19/22
AG
Here the thing. If you sue, your HOA management company is gonna be like hell yeah, more fees for us to support this lawsuit, the actual attorneys costs are fronted by the HOA itself. Who's members don't really care if the HOA is sued because they're also not liable, but will support pushing forward with the lawsuit because they certainly aren't gonna give up the power to their fiefdom willingly.

The only person that wins when it comes to HOAs is John Carona, who while in the legislature worked to encode into law the rules and regulations that ensure HOAs / Associa remain in power.
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Goodnight Irene
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In reply to Diggity • 2:18p, 9/19/22
AG
Valid question. However, it's the fact they are adding language to the covenants that aren't there. I was even told before my appeal that they would meet with me but weren't going to approve.

Then they were telling me I could convert my attached garage and brick up the garage door opening or build as long as it was attached to the house regardless of how stupid it would look. Where our build site is it be unobtrusive and not even visible from our street.
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Diggity
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In reply to Goodnight Irene • 2:49p, 9/19/22
AG
I do think it's odd to use an ambiguous term like "discouraged" in the covenants.

Unless they have allowed other people to add separate quarters, I don't think you'll have much luck fighting it though.
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coolerguy12
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10:08p, 9/19/22
AG
F the HOA is all I have to say about this
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dudeabides
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6:02a, 9/20/22
AG
Have you investigated what your HOA's bylaws say about changing the covenants?

The previous HOA I belonged to had bylaws that allowed individual homeowners to petition the association to make changes. Specifically, if you could get 66% or more to agree to the change and sign your petition, the HOA Board had to enact it. I went this route to add third car garage to our house (which was specifically prohibited by the covenants). This took a bit of legwork over several weekends as we had 125 households in the association. Going house-to-house and catching people in person was key, as most people when confronted face-to-face will agree to any reasonable change (IMO).

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Goodnight Irene
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In reply to dudeabides • 8:36a, 9/20/22
AG
It takes a 60% vote at a homeowners meeting. I went to the last HOA meeting and there were three attendees.
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Furlock Bones
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8:49a, 9/20/22
AG
yep, if you want it, you'll probably have to sue the HOA. now they might give up if you pay an attorney to draft an official letter. but, they might not.
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one MEEN Ag
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In reply to Ol_Ag_02 • 8:55a, 9/20/22
AG
Ol_Ag_02 said:
Here the thing. If you sue, your HOA management company is gonna be like hell yeah, more fees for us to support this lawsuit, the actual attorneys costs are fronted by the HOA itself. Who's members don't really care if the HOA is sued because they're also not liable, but will support pushing forward with the lawsuit because they certainly aren't gonna give up the power to their fiefdom willingly.

The only person that wins when it comes to HOAs is John Carona, who while in the legislature worked to encode into law the rules and regulations that ensure HOAs / Associa remain in power.
Thats a little more cynical than most HOA's internally will run (but not by much).

They can run out of cash just like you can. And its not politically nice for them to have to explain they're raising rates because of a lawsuit that they could avoid. Or that other projects are delayed.

The rub will be how realistic are their lawyers versus the lawyer OP hires. If their lawyer can't find any reason to support 'discouraged' as a definitive legal action separate from 'denied' then I think OP would win in a game of chicken here and the HOA would settle right before the lawsuit. Most lawyers aren't stupid, its the clients that are emotionally invested.

The politics working against OP is that broad language denying casitas really cuts down on AirBnBs infiltrating neighborhoods. So for every family that appreciates you fighting to give your aging mother their own living quarters, there are 2-3 other families who think you're going to allow 23 year olds to throw ragers and play music too loud.
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one MEEN Ag
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In reply to coolerguy12 • 8:59a, 9/20/22
AG
coolerguy12 said:
F the HOA is all I have to say about this
I have a love/hate relationship with them. When HOA's are run well its a great place to live. When they devolve into power struggles among the retired it sucks.

The hard part about moving out of an HOA is finding an area that isn't full of adverse selection of bubbas who leave their cars parked on the lawn, houses that look like crap, play music all night long, keep roosters and other animals, and yell at their feral children off the back porch like nobody else can hear them.
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Ol_Ag_02
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In reply to one MEEN Ag • 9:13a, 9/20/22
AG
one MEEN Ag said:
Ol_Ag_02 said:
Here the thing. If you sue, your HOA management company is gonna be like hell yeah, more fees for us to support this lawsuit, the actual attorneys costs are fronted by the HOA itself. Who's members don't really care if the HOA is sued because they're also not liable, but will support pushing forward with the lawsuit because they certainly aren't gonna give up the power to their fiefdom willingly.

The only person that wins when it comes to HOAs is John Carona, who while in the legislature worked to encode into law the rules and regulations that ensure HOAs / Associa remain in power.
Thats a little more cynical than most HOA's internally will run (but not by much).

They can run out of cash just like you can. And its not politically nice for them to have to explain they're raising rates because of a lawsuit that they could avoid. Or that other projects are delayed.

The rub will be how realistic are their lawyers versus the lawyer OP hires. If their lawyer can't find any reason to support 'discouraged' as a definitive legal action separate from 'denied' then I think OP would win in a game of chicken here and the HOA would settle right before the lawsuit. Most lawyers aren't stupid, its the clients that are emotionally invested.

The politics working against OP is that broad language denying casitas really cuts down on AirBnBs infiltrating neighborhoods. So for every family that appreciates you fighting to give your aging mother their own living quarters, there are 2-3 other families who think you're going to allow 23 year olds to throw ragers and play music too loud.


Fair enough. I wish nothing but evil and disdain on my HOA, this is the last house I'll ever live in that has one.

Mine is currently fighting a HUD complaint because they don't want to allow wooden tree swings in front yards because "they make our neighborhood look trashy and children should play in backyards".

They're gonna get their asses handed to them because they do not enforce all front yard requirements; i.e. all the old folks get to have bistro tables, Adirondackchairs and bird baths in their front yards without getting violations because they're on the ACC and or friends with ACC members. All of which are violations of our covenants.

So the fact they enforce the rules designed to limit the activities of children and not those for adults is problematic for HUD.

We've been through ACC reviews, we've petitioned the board, we've been over ruled several times. My personal favorite document I sent to HUD was a member of the ACC accidentally copied me on an email that said "go ahead let (my neighbor) sue the HOA we'll just counter sue her into oblivion when she asked for an appeal per the bylaws."

I hate HOAs. But I can live with equal and fair enforcement of the rules. I cannot stand NIMBY bitter losers that only enforce the rules they like and routinely amend the ACC rules and regs to fit what they want when they want.

Mostly I hate them because we owe an extra $2000 this year because they depleted our surplus in 2020 to spend $250,000 on a aesthetic stone wall for the front of neighborhood. It's a wall that is in sections, doesn't actually provide a barrier or any sound deafening, strictly done for looks. Expenditure was not voted on by the community.
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coolerguy12
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In reply to one MEEN Ag • 8:49p, 9/20/22
AG
one MEEN Ag said:
coolerguy12 said:
F the HOA is all I have to say about this
I have a love/hate relationship with them. When HOA's are run well its a great place to live. When they devolve into power struggles among the retired it sucks.

The hard part about moving out of an HOA is finding an area that isn't full of adverse selection of bubbas who leave their cars parked on the lawn, houses that look like crap, play music all night long, keep roosters and other animals, and yell at their feral children off the back porch like nobody else can hear them.


I'm in an HOA and currently every single one of these apply to us except I don't have any issues with music all night. And I'm the one with the donkey so I don't know if that applies. And I still think our HOA is too overbearing. Just leave people the hell alone and keep the pool open. Is that too much to ask?
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Jack Klompus
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9:45a, 9/26/22
AG
I was on an HOA board, and we had an issue like this come up. The only way were able to deny it was language that prohibited that additions on the garage from being taller than the main house and that they didn't want to put a bathroom in the garage apartment.
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The Fife
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11:35a, 9/26/22
I did my time on an HOA board in one of the Deerfield communities in San Antonio and it was alright. All we cared about was keeping a fund for road work (private streets), eventual gate replacement, and street lights.

I was the entire architectural committee so meetings were quick. Want a tree, cool. Replace the 20 year old bushes in the front yard with something that'll stay small, alright. Back yard cookout area with a great big hot tub for swingers parties, have fun with that! Give me a form that meets the minimum requirements for being filled out and I'll gladly rubber stamp it.

Now I'm in an older neighborhood (developed 1955-1965ish) and there's no HOA, and it's not the end of the world. There's value in the land, location, and schools so it's out of reach from anyone would really let the place go. I'd never go back to a neighborhood with an HOA again because I like the complete and total freedom to change things without asking anyone but the city to pull a permit. The amount of work that's gone on would've given a bunch of blue hairs on an architectural review committee a heart attack. It's all on the thread I have going on the home improvement board.
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Carnwellag2
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In reply to one MEEN Ag • 12:16p, 9/26/22
one MEEN Ag said:
Your only option is to sue. I'm no lawyer, but I have an issue about with the word 'discouraged' used here. It the HOA bylaws meant banned, they would have said it.

I would argue they've met their 'discouraging' bar by denying and you appealing. On the final appeal they should have granted it then.
Well - the other option is to get neighbors who think like you to serve on the board and the ACC. most of the time - you can just have people volunteer and they are on.

then reapply
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Ol_Ag_02
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12:29p, 9/26/22
AG
The third option is to not have an ACC and let homeowners do what they want with their own properties.

I have no desire to join an ACC and tell people what to do. I'd like to paint my house, not allowed. I wanted a larger pool cabana, limited in size, I'd like to build a shed in my backyard not allowed, I want my kids to have a tree swing in the front yard to hang out with their friends (well I still have that because I'm willing to flip the HOA the bird and pay the fine).

If my HOA would just stick to mowing the common areas and keeping the pool clean I'd be happy. But they'e not content until in their minds we have the perfect neighborhood stuck in 1992.

I pay $2000 a year for a pool with dirty bathrooms (built my own so I wouldn't have to deal with it anymore) and closed off playground because it's rusted and they wasted all our money on old lady vanity projects that emptied our coffers.
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62strat
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In reply to Ol_Ag_02 • 3:33p, 9/26/22
AG
Ol_Ag_02 said:
Goodnight Irene said:
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine


At the end of the day these are people that volunteer in prefer to get to tell their neighbors what they can do with their own homes.

These are not likely the kinds of people that like to relinquish "power" and change their minds.
I'm on my HOA board. The ARC can't tell homeowner what he can or can't do to his home. The governing documents/bylaws determine this. It is up to the 5 or whatever people on the committee to determine if the request is in line what the bylaws allow.

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62strat
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In reply to Carnwellag2 • 3:41p, 9/26/22
AG
Carnwellag2 said:
one MEEN Ag said:
Your only option is to sue. I'm no lawyer, but I have an issue about with the word 'discouraged' used here. It the HOA bylaws meant banned, they would have said it.

I would argue they've met their 'discouraging' bar by denying and you appealing. On the final appeal they should have granted it then.
Well - the other option is to get neighbors who think like you to serve on the board and the ACC. most of the time - you can just have people volunteer and they are on.

then reapply
This.

I didn't like the work from home power trip 60 year old lady turning me for stupid crap all the time when we first moved in (to a new build) and I was doing simple improvements that anyone do to a new home (put in sod, bushes, deck, etc)

So I joined. Then I got people like me to join.

Old hag lady ended up moving, and we find out, to a house with no HOA lol.

Now our HOA is fine. None of the 5 of us give a crap what people want to do, so long as the bylaws allow, which came way before us and we all agreed to when moving in.
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Ol_Ag_02
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In reply to 62strat • 3:42p, 9/26/22
AG
62strat said:
Ol_Ag_02 said:
Goodnight Irene said:
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine


At the end of the day these are people that volunteer in prefer to get to tell their neighbors what they can do with their own homes.

These are not likely the kinds of people that like to relinquish "power" and change their minds.
I'm on my HOA board. The ARC can't tell homeowner what he can or can't do to his home. The governing documents/bylaws determine this. It is up to the 5 or whatever people on the committee to determine if the request is in line what the bylaws allow.



Except the Architectural Committee makes bylaw recommendations which get rubber stamped by the board and enacted without a community vote. Over half of our architectural bylaws have been put in place since I moved in eight years ago, none were put to a vote by the homeowners.

That's how ours works.

For example someone painted their brick, NIMBYs got pissy, bylaw enacted preventing future brick painting, no homeowner vote.
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62strat
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In reply to Ol_Ag_02 • 3:52p, 9/26/22
AG
Ol_Ag_02 said:
62strat said:
Ol_Ag_02 said:
Goodnight Irene said:
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine


At the end of the day these are people that volunteer in prefer to get to tell their neighbors what they can do with their own homes.

These are not likely the kinds of people that like to relinquish "power" and change their minds.
I'm on my HOA board. The ARC can't tell homeowner what he can or can't do to his home. The governing documents/bylaws determine this. It is up to the 5 or whatever people on the committee to determine if the request is in line what the bylaws allow.



Except the Architectural Committee makes bylaw recommendations which get rubber stamped by the board and enacted without a community vote. Over half of our architectural bylaws have been put in place since I moved in eight years ago, none were put to a vote by the homeowners.

That's how ours works.

For example someone painted their brick, NIMBYs got pissy, bylaw enacted preventing future brick painting, no homeowner vote.
Then your HOA BOD is breaking the law.
Covenants can't be changed without max 67% homeowner vote (can be less if your documents specify).

Simple as that.

https://legalbeagle.com/11373477-texas-procedure-amending-deed-restrictions.html
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Ol_Ag_02
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In reply to 62strat • 3:57p, 9/26/22
AG
62strat said:
Ol_Ag_02 said:
62strat said:
Ol_Ag_02 said:
Goodnight Irene said:
Worried that may be the case. I was hoping that the appeal meeting at my house with members of the board was considered separate from the ARC denial but still they would have to adhere to the 30 days to rule on the appeal.

ETA: I wouldn't necessarily call it a courtesy as it is required by the Texas Property Code is my understanding. Of course being that is statutory, it would take lawyers discussing with a judge at great expense to determine


At the end of the day these are people that volunteer in prefer to get to tell their neighbors what they can do with their own homes.

These are not likely the kinds of people that like to relinquish "power" and change their minds.
I'm on my HOA board. The ARC can't tell homeowner what he can or can't do to his home. The governing documents/bylaws determine this. It is up to the 5 or whatever people on the committee to determine if the request is in line what the bylaws allow.



Except the Architectural Committee makes bylaw recommendations which get rubber stamped by the board and enacted without a community vote. Over half of our architectural bylaws have been put in place since I moved in eight years ago, none were put to a vote by the homeowners.

That's how ours works.

For example someone painted their brick, NIMBYs got pissy, bylaw enacted preventing future brick painting, no homeowner vote.
Then your HOA BOD is breaking the law.
Covenants can't be changed without max 67% homeowner vote (can be less if your documents specify).

Simple as that.

https://legalbeagle.com/11373477-texas-procedure-amending-deed-restrictions.html


Appreciate it. I will look into it.
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Ol_Ag_02
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In reply to 62strat • 4:39p, 9/26/22
AG
Interesting. Our HOA Declarations drafted in 1992 give the ACC the ability to "adopt, promulgate, amend, revoke, and enforce guidelines"

However, Sec 201.0051 says…


Sec. 201.0051. SPECIAL PETITION APPROVAL REQUIRED FOR CERTAIN RESTRICTIONS. A right created or an obligation imposed by an existing restriction that relates to the developer of the subdivision or an architectural control committee established by the instrument creating the restriction cannot be altered unless the person who has the right or obligation signs and acknowledges the petition.

Added by Acts 1997, 75th Leg., ch. 451, Sec. 3, eff. Sept. 1, 1997.


Sec. 201.006. PETITION PROCEDURE. (a) A petition may be circulated, signed, acknowledged, and filed by or on behalf of owners at any time during the circulating committee's existence. The petition must conform to the requirements of Section 201.007.
(b) The petition may be filed not later than one year after the date on which the notice required by Section 201.005(a) is filed. The petition must be signed and acknowledged by owners who own, in the aggregate:
(1) a majority of the total number of lots in the subdivision, in order to extend, renew, or create restrictions;
(2) a majority of the total number of separately owned parcels, tracts, or building sites in the subdivision, whether or not the parcels, tracts, or building sites contain part or all of one or more platted lots or combinations of lots, in order to extend, renew, or create restrictions;
(3) a majority of the square footage within all of the lots in the subdivision, excluding any area dedicated or used exclusively for roadways or public purposes or by utilities, in order to extend, renew, or create restrictions;
(4) at least 75 percent of the total number of lots in the subdivision, in order to modify or add to existing restrictions;

Seems to me that you are correct are declarations in 1992 gave the ACC the ability to create and amend restrictions but that power seems to be overridden by law in 1997 and require a 75% majority approval.

Unless I'm just completely misunderstanding this.
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62strat
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5:04p, 9/26/22
AG
Like I said, I'm on my HOA BOD (albeit in CO) and we absolutely cannot arbitrarily change/modify or add/remove any bylaws/covenants without 67% homeowner approval.

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OnlyForNow
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In reply to 62strat • 11:28a, 9/27/22
AG
This is correct in Texas as well.

We cannot make changes to the deed restrictions, we can make changes to the ARC though. However, in my time on my board we've only broadened items, such as including vinyl fencing and adding standing seam metal roof as approved.

Doesn't your ARC bylaws state that you can request a variance from the BOD if denied? If the BOD isn't on board, then there is a possibility you can get neighbor involvement for a special meeting and referendum to amend/change that specific bylaw.
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Old School Brother
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In reply to 62strat • 3:58p, 9/27/22
AG
62strat said:
Like I said, I'm on my HOA BOD (albeit in CO) and we absolutely cannot arbitrarily change/modify or add/remove any bylaws/covenants without 67% homeowner approval.

Has anyone ever actually seen any bylaws get changed? From what I've seen, all HOAs are stuck with whatever bylaws were created when the neighborhood was built. Getting 67% approval is damn near impossible, even if almost all people in the neighborhood are in favor. There's a certain percentage of people, approximately 34% at least, that will never vote on any changes, even if you go door to door, nor will they allow anyone to proxy for them. Not because they don't want the change, they just don't care to get involved with anything at all.
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Ol_Ag_02
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In reply to Old School Brother • 4:04p, 9/27/22
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Old School Brother said:
62strat said:
Like I said, I'm on my HOA BOD (albeit in CO) and we absolutely cannot arbitrarily change/modify or add/remove any bylaws/covenants without 67% homeowner approval.

Has anyone ever actually seen any bylaws get changed? From what I've seen, all HOAs are stuck with whatever bylaws were created when the neighborhood was built. Getting 67% approval is damn near impossible, even if almost all people in the neighborhood are in favor. There's a certain percentage of people, approximately 34% at least, that will never vote on any changes, even if you go door to door, nor will they allow anyone to proxy for them. Not because they don't want the change, they just don't care to get involved with anything at all.


I think it depends on what constitutes bylaws. The HOA declarations or the ACC guidelines. I can tell you from looking through our design mods they all have effective dates some are from 1992 but they've been added all the way up through 2020. I've lived here 9 years and never been asked to vote on anything that constitutes a design change. Like preventing solar panels, house paintings, etc.
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In reply to OnlyForNow • 4:06p, 9/27/22
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OnlyForNow said:
This is correct in Texas as well.

We cannot make changes to the deed restrictions, we can make changes to the ARC though. However, in my time on my board we've only broadened items, such as including vinyl fencing and adding standing seam metal roof as approved.

Doesn't your ARC bylaws state that you can request a variance from the BOD if denied? If the BOD isn't on board, then there is a possibility you can get neighbor involvement for a special meeting and referendum to amend/change that specific bylaw.


Vinyl fencing and metal roofing would constitute an all out HOA war around here. We literally have been dictated bird house sizes.
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