#448 Hecker v. Kenwood Forest Condominium II #448 (January 3, 2000) (Panel: McCabe et al.)

The unit owner appealed a decision of the board of directors that she remove a stairway from her deck and that she pay a daily fine of $5 for each day the stairway remained in place.

The evidence showed that the deck was attached to the unit when the unit owner purchased it.  She then filed an application to add a stairway to the deck.  The association failed to respond to the application within the 60 days allowed by its rules.  However, after the 60 days expired the association asked her for more information on the proposed stairway, which she then provided.  The association again failed to act on this renewed application within 60 days and under the rules it was deemed approved "by default."  However, the homeowner failed to begin construction within 6 months, as required by the rules, beginning work only 7 months after the approval by default, and therefore, under the rules, her approval to construct them had expired. The association then, after negotiations and hearings, ordered her to remove the stairway and pay a daily fine.

The evidence also showed that there were 3 homes in the same row as the unit owner's home which had stairways from their decks.  Other homes in other rows also had similar stairways.  It was not clear whether the developer or the association had approved the construction of the stairways.

The panel held that the board's decision to require the unit owner to remove her stairway was unreasonable.  The board had approved the stairs by default at least once, if not twice; and the stairs as constructed were similar to several other stairs in the same community as well as in her own row of buildings.  Although the unit owner herself violated the rules by constructing the stairs after the approval by default expired, that violation was minor in the context of the case.

The panel reversed the board's decisions and ordered the unit owner to file an application for the stairs she had already constructed.  The board could impose reasonable restrictions but could not deny the application.