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CCOC Decision Summary

#261-G, Peachwood Estates Homeowners Association v. San Miguel (February 8, 1995) (Panel: Broe, Chester, Mehler)

The homeowners association (HOA) complained that the homeowners (HO) had violated the community rules by installing a retaining wall and in-ground swimming pool without permission.  At the hearing, the parties agreed that there were 2 issues: whether the HOA could require the HO to remove the retaining wall, and if not, then: 2. whether the HOA could require the HO to install landscaping to conceal the retaining wall on property not belonging to the HO.

The evidence at the hearing showed that the HOA Declaration prohibited all changes to the buildings and lots without advance approval from the HOA.  The HO, and a neighbor of his who also wanted to construct a fence and retaining wall, met with the HOA board in August, 1992, to orally discuss their plans for the pool, fences and retaining wall.  According to the HO and his neighbor, the board gave them oral approval for their projects at this meeting, and the HO at that meeting offered to pay half of the cost of landscaping the proposed retaining wall.  In September, 1992 the HO submitted written plans for a 6-foot tall fence as well.  The HOA sent a letter agreeing to the fence but stating that the HO must submit a written application for the retaining wall, which he did.  The HOA forwarded the proposal to the County's building inspection office for review, and in October, 1992, the Board denied the request to build the retaining wall until further review was done.  The HOA denied it had given any oral approval for the retaining wall.  Further negotiations ensued, but in early 1994 the HOA again denied approval for the retaining wall, which was to be built along one of the entrances to the community.

The hearing panel found that the HOA did not approve the oral request for the retaining wall at the August, 1992 meeting; and that the HOA reserved its right to approve the fence project on condition that the HO pay for the landscaping of the area outside the HO's property line but it did approve, the  following month, the plans for the fence.   The HOA did not act arbitrarily to refuse permission to build the retaining wall pending certain conditions, and the HO violated the rules by constructing the retaining wall without approval.  The HOA did have the authority to require the HO to pay for landscaping of the common elements in order to maintain "the harmony of external design and location" as allowed by the Declaration; but the HOA did not have the legal right to deny approval of the retaining wall altogether, because it could only do so for reasons of safety, bad design or substandard building materials, and the HOA did not produce facts to show that any of those 3 reasons applied.

The panel ordered that the HO submit plans to landscape the common elements next to the retaining wall at his own expense within 45 days; it ordered the HOA to approve the plans for the retaining wall itself unless it had an expert opinion that the wall was unsafe or substandard; and it ordered the parties to apply jointly for any permits necessary for the landscaping.  Finally, the panel ordered the HO to pay for the cost of maintenance of the landscaping on the common elements.

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