Real Estate & Property Law

How Should Architectural Review "Appeal" Processes Work?

One of my readers sent in this question about architectural review. He is an architect, working with various HOAs to do architectural review. This is what he has to say:

"My firm provides architectural review services to a number of associations. Some association Boards have a policy of reviewing ARC appeals only to determine one of two things, the applicant is seeking a variance or the applicant is claiming inappropriate procedural actions by the ARC committee. They do not reevaluate the submittal for its subjective merits as evaluated by their architectural consultant and ARC members.

Some association Boards end up reviewing every submittal that was denied by the ARC and expend a great deal of personal time visiting the site and reevaluating the architectural merits of the submittal.

Are there some specific laws that govern the required review / appeal process? Are both doing it right? Is one doing it wrong?"

I am not sure either process is "wrong" because there is no specific definition written in the statute and there might be attorneys who would disagree with me. However, I would interpret California Civil Code Section 1378, since it provides the right of "reconsideration" (as opposed to right of appeal), to mean that if the Board is a different body than the ARC (Architectural Review Committee), and a request for reconsideration is made, then the Board should take a look at the plans that were submitted and analyze whether to accept or reject the ARC's position, or suggest something different (such as conditions).

Here is what the statute says about the subject:

"If a proposed change is disapproved, the applicant is entitled to reconsideration by the board of directors of the association that made the decision, at an open meeting of the board. This paragraph does not require reconsideration of a decision that is made by the board of directors or a body that has the same membership as the board of directors, at a meeting that satisfies the requirements of Section 1363.05. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 1363.820."

One reason there may be confusion about the review process is that some documents provide a right of "appeal" and sometimes that is defined, and people figure it is sufficient under the statute that calls for fair and reasonable processes. However, in the courts the "appeal" standard of review is (very generally) limited to a determination (such as in an owner vs. an HOA case) as to whether the "body" making the decision on the first round abused its discretion, or if there were lower court procedural issues. Therefore, if a Board is reviewing plans in a more objective manner, only to determine if the owner is asking for a variance or is complaining about procedural missteps, the decision to do it that way may relate to some commonality with the court appellate standards of review.

As for my view, I would go looking for a definition, and "Webster's" is a good place to look. Webster's dictionary defines "reconsideration" as "consider again with a view toward changing or reversing." At the National CAI law conference in January, there were a number of cases where the courts in other states turned to the dictionary for definitions that were not apparent in the law or documents being reviewed, so it is not a stretch.

So that's "my two cents worth" on this question ...

Full post as published by California Condo & HOA Law on March 14, 2008 (boomark / email).