Applying architectural guidelines and procedures uniformly is a major objective of the Architectural Review Committee (ARC). Like the board, the ARC should treat everyone the same. It should not, for example, require one owner to submit a $250 deposit to review plans, while reviewing a committee members’ neighbor’s plans for free, or approve one person’s request to install a particular shed, while denying installation of an identical shed for another person.
Occasionally, however, a situation will arise where the regular application of the architectural guidelines is inappropriate or unfair. What can the ARC do in these situations? Under what circumstances can the ARC grant a variance (i.e. approval to do something contrary to the governing documents)?
When determining whether to grant a variance, here are some steps to consider:
- Look for variance authority. Look to the declaration. Typical language will allow the ARC to grant variances in order to overcome undue hardships or practical difficulties, or according to some other criteria. If the declaration does not contain this authority, the association may not grant the variance.
That being said, the ARC may still decide to make architectural review adjustments for a particular applicant, if circumstances warrant, or the law requires, and if the decision is in good faith, prudent and in the best interests of the association. For example, the ARC could allow an owner to build an improvement a few inches outside the setback requirement in order to preserve trees that would otherwise have to be destroyed if building within the setback requirements. In that case, the Association records should reflect the business decision and the rationale behind it, and not refer to it as a “variance”.
- Make sure the applicant meets the variance standards. If an applicant requests a variance, the ARC should only grant such variance if it fits the variance criteria. For example, if the declaration provides that variances may be granted in order to “overcome undue hardships,” the ARC should not grant the variance due to topography or aesthetic considerations. It should only grant the variance if not doing so will result in undue hardship.
- Document the rationale. Clearly document the reasons behind granting the variance. Why? So future ARC and board members are able to justify why you treated one person differently than another. In other words, documenting the variance reasons will minimize claims of arbitrary enforcement and discrimination.
- Grant Reasonable Modifications to Disabled Persons. Regardless of the variance standards, the FHA requires an association to grant disabled persons reasonable accommodations and modifications. If, for example, a disabled person needs to install a wheelchair ramp in front of his/her unit, the association must grant this request regardless of whether installation would fall within the variance standards. If you are unsure whether an application falls under the FHA, contact your attorney.
- Do not grant variances on a regular basis. Some declarations will allow the ARC to grant variances at its discretion, so long as the variance is not detrimental or injurious to other properties in the community. In these cases, although the ARC has broad variance authority, the ARC should not be granting variances on a regular basis. If the ARC habitually grants variances, it could effectively abandon the restriction or procedure in question because of the number of variances previously granted.