Complaint: landscaping, interpreting and variances from the guidelines;
Source of Law: CC&Rs
Discussion: On September 13, 2006, Petitioner wrote a letter to the Committee requesting a formal appeal of its decision and explaining why Petitioner felt that the Committee should reconsider the request to allow artificial turf. Exhibit P3. In addition to environmental and health concerns associated with natural turf, Petitioner indicated his belief that a precedent had been set to allow artificial turf because Respondent had previously allowed artificial turf to be substituted for natural turf at another residence within the planned community.
At the hearing on this Petition, Respondent acknowledged that there was one homeowner in the community that had been allowed to install artificial turf in her front yard due to health reasons. That exception, however, was granted by the previous Board of Directors and was believed to have been a response to an Americans with Disabilities Act (ADA) claim presented to that Board by the homeowner.
The authority for the Committee to exercise such broad discretion in approving or disapproving landscape features is found in Article VII, Section 7.2 of the Declaration . . . .
The Committee did not approve Petitioner’s request to use artificial turf. Clearly, the Declaration gives the Committee broad discretion to deny such a request. The only limitation on the Committee’s exercise of that broad discretion is found in the sentence “Approval shall not be unreasonably withheld.”
Finally, the fact that there had been a variance from a strict application of the Guidelines in the past does not create a legally sufficient basis to justify Petitioner’s position that the Declaration and Guidelines can no longer be used to prohibit future use of artificial turf.
A variance granted by the Board to a single homeowner does not meet the “frequent violations” standard cited by the court in Burke, supra. Consequently, that previous, lone variance does not preclude the Committee from denying Petitioner’s request.
Holding: For all the reasons stated above, the Petition is denied.
Comments: none.
