Design Review: How Community Associations Maintain Peace & Harmony 

Introduction—Background and Key Points

Design review—sometimes called architectural control—involves everyone who has a vested interest in a community association because it helps to maintain, protect, and enhance property values. Though homeowners are most directly affected, builders and lenders often are concerned with the continuing quality of the project as long as their reputations and financial support are connected to the community. Public officials have an interest in maintaining and enhancing the community as well—tax revenues increase with property values.

Associations that fail to properly exercise design review can foster misunderstanding and controversy among homeowners, a series of actual or alleged violations, and numerous expensive and protracted court cases. Additionally, the association and its members may see property values decline if design review is absent, ineffective, or inconsistently enforced.

To be successful, a design review program must be recognized by the community as a benefit—not a burden. The board must clearly communicate the program's purpose and structure. This guide will help associations establish and enforce appropriate design review procedures and requirements. It uses the term "design review" to describe methods commonly used by associations to preserve and enhance their community. This term is used instead of "architectural control" because it:

• Emphasizes that the process pertains to the design concept as a whole (e.g., signs or landscaping).
• Emphasizes the positive aspects of the review process rather than the negative concept of control.
• Conforms to language used by architectural professionals.

Key Points

• Properly exercised design review protects property values by creating and preserving an attractive community.
• Every association should adopt a manual of design review guidelines to ensure the review process is legally valid and enforceable. The guidelines should discuss the association's legal basis, approval requirements, and basic design principles.
• The association should promptly notify new members of its design review requirements, issue periodic reminders to all members, and give design review guidelines to every member considering an exterior design change.
• Each design approval application should be processed fairly, reasonably, and in a timely manner.
• The design review committee should always include one or more homeowner representatives—even if the developer initially controls the committee.
• The association should handle violations promptly, fairly, and reasonably. Most violations can be easily resolved. Consult legal counsel in cases involving an unresponsive resident or an emergency situation.

Chapter 5: How Federal Regulation Affects Design Review

It's important for community associations to understand the basic provisions of several federal laws that relate to the design review process. Most notably these include the Federal Fair Housing Act, the Americans With Disabilities Act, and the Telecommunications Act. In many cases these, federal laws have state and local counterparts.

Fair Housing Act

The Federal Fair Housing Act prohibits discrimination in residential real estate matters on the basis of race, sex, color, religion, national origin, familial status, or handicap. State statutes may add protections on the basis of marital status and sexual orientation. State or local governmental offices will provide associations with information about extensions to fair housing laws.

In 1988, Congress added two new protections that allow disabled individuals to have an equal opportunity to enjoy their dwellings. As a result of this protection, community associations must allow disabled individuals to make reasonable modifications to dwellings or common areas that afford them full enjoyment of the dwelling. The disabled person must pay for the modifications. This federal right to make reasonable modifications supersedes an association's governing documents and design review criteria.

A community association can place reasonable conditions on the modifications. For example, an association may require an individual to:

1. Provide a reasonable description of the modifications.
2. Provide reasonable assurances that the work will be done in a professional manner.
3. Obtain any required building permits.

In appropriate instances, the association may require the disabled person to restore the premises to its original condition at the end of his or her occupancy. An association should seek the advice of an attorney before imposing this type of requirement.

The act also requires associations to make reasonable accommodations to their normal rules, regulations, policies, and procedures to accommodate the needs of disabled individuals. The U.S. Department of Housing and Urban Development gave the following examples of reasonable accommodations:

1. Permit a sight-impaired individual to have a seeing-eye dog in a no-pets community.
2. Permit a mobility-impaired individual to have a parking space near his or her unit.

The act's reasonable accommodation provisions may require associations to make exceptions to their regular design review requirements. For example, associations may need to modify provisions requiring owners to appear before the design review committee for individuals who are mobility impaired.

Courts will consider whether an accommodation imposes an undue burden on the association. The courts also will weigh the benefit of the accommodation to the disabled person against the burden on the association. The association may need to pay the cost of reasonable accommodations.

[This sample includes only a portion of Chapter 5.]