More About That Anti-Building Resolution

Author: Phil Trubey

Date: May 15, 2020

Buried in my recap of the January RSFA Board meeting, was a short segment about a resolution the Board passed which may make life hell for many Covenant members looking to remodel or build new.

The resolution allows any RSFA member to object to any approved remodel or new house construction. After you've won your hard earned Art Jury approval, now any of about 4,000 members can challenge it, and due to the way the Art Jury process works and the way the resolution is written, many projects can be successfully challenged depending on how the RSFA Board rules.

Yes, you read that right, most projects of any complexity can be successfully challenged depending on what the Board (not the Art Jury) thinks about your project.

To understand why, you need to understand how the Art Jury process works and what the IDR says.

The Art Jury Process

When you submit a project, the Art Jury works with you looking at the project against black and white rules in the Regulatory Code (eg. "Lighting of Tennis Courts and/or Recreation Areas and related facilities is prohibited."), subjective criteria as found in the Covenant (eg. house color must be "generally light in tone"), and suggestions as found in the Residential or Commercial Design Guidelines (eg. build a winding driveway rather than a straight driveway). 

Most complex submittals are found wanting based on these documents. The Art Jury works with the member to point out deficiencies and sometimes makes suggestions. It is a collaborative process where the member (and typically their architect) discuss issues with the Art Jury and work towards a solution. It isn't unusual for a new house to be presented in front of the Art Jury six or more times before all the issues are resolved. 

The Covenant has always allowed members to appeal negative Art Jury decisions against their own submittals (ie. a denial). Overturning a negative Art Jury decision requires at least four-fifths of the entire membership of the Board (Covenant, Par. 67) and is rarely done. The current Association Manager, Christy Whalen, cannot recall the Board overturning a negative Art Jury decision.

What the IDR Says

This new IDR process allows any member to dispute any final act (decision or ruling) of the Art Jury. The dispute must identify the specific provision of the Covenant, the Regulatory Code, or the Residential or Commercial Design Guidelines that they think have been violated.

There are several problems with this.

First, the Design Guidelines are just that, guidelines, and were never meant to represent black and white rules. They are subjective criteria that may or may not apply to a particular project.

Second, the Covenant also has subjective criteria to judge a design. Under this new IDR process, a member could object to a house saying that the color isn't muted enough. That could be a valid complaint that would have to be heard under this IDR process.

Third, there is no time limit for member complaints. You could be well into house construction and any one of 4,000 members could object to something. You would then be at the mercy of the Board (see process below) whether or not you could continue building your house without implementing possibly significant modifications. The IDR does state a preference that complaining members object as soon as possible once a final decision has been made, but it still allows complaints at any time.

IDR Process

Since this is ostensibly a dispute between a member and the Association (the theory being that the Association, really the Art Jury, didn't discharge their duties correctly), the homeowner who is building/renovating their property doesn't actually have a say in the IDR process. 

A hearing is held where the complaining member, possibly accompanied by their lawyer, sets out their complaint. Two Board members are assigned to represent the Association and they, possibly in conjunction with Association staff, will attempt to resolve the complaint. While a single Art Juror, and the homeowner (without a lawyer) is allowed to attend this hearing, they are not allowed to participate. 

So the people that are most impacted and most knowledgeable about the project (the homeowner and the rest of the Art Jury) are not involved in the hearing. While the process mandates the two Board members interview the homeowner and the single Art Juror before the hearing, a single interview is unlikely to be sufficient to understand a complex project. Moreover this effectively gives Board veto over Art Jury decisions. And to top it off, Board members can also complain about projects and there is no provision to force them to recuse themselves on votes due to conflict of interest.

The complaining member and the two Board members then come to some resolution and that resolution is then ratified at the next Board meeting. 

The end result is that the Board can overturn or modify positive decisions (ie. approvals) by the Art Jury. 

The Theory Behind the IDR Process

The IDR preamble section 1.1 says that they were required to put into place this IDR due to new CA law (section 5900 et seq. of Davis-Stirling). This is incorrect on its face since Davis-Stirling specifically has procedures to be used in case the Association does not enact its own IDR. So while the Board can enact its own IDR process, it isn't required to.

The Board's IDR process also goes far beyond what Davis-Stirling requires. It is our Board that has decided to make this IDR process applicable to Art Jury decisions (Davis-Stirling makes no mention of this). It is our Board that has decided to include non adherence to subjective criteria, as opposed to black and white regulations, as a valid reason to complain about a project. It is our Board that decided to not have any time limits on complaints about Art Jury decisions, meaning that a partially constructed house could be called into question. It is our Board that decided that homeowners are not allowed to defend their projects against other member's objections. And it is our Board that decided all this will be done in secrecy.

Democracy Dies in Darkness

As you know, all remodels and new construction applications are published for all to see and indeed any member can inspect any submittal. But IDR challenges under this resolution are done in secrecy. The Association doesn't publish anything about in process IDRs and won't tell you anything about IDRs you might have heard about, citing member confidentiality. The only thing not confidential, apparently, is your desire to remodel or build. So this IDR process could be very well be abused (even as you read this) and no one would know.

Why?

The Board could have adopted an Art Jury IDR process where complaints would only be permitted if the Art Jury and/or Association staff did not follow proper procedures as outlined in the Covenant. This would side step re-examination of the many subjective decisions the Art Jury must make. 

Various Board members have expressed hostility to Art Jury decisions in the past. Allen Finkelson denigrated the Art Jury's approval of a project during the annual general meeting last year. That same meeting saw the Board make a case for more Board oversight of the Art Jury. Current Board members Bill Strong and Sharon Ruhnau have both expressed disdain for Art Jury decision making. 

Remember how I said earlier that the Association General Manager cannot recall the Board every overturning a negative ruling from the Art Jury. Well guess what? They have already overturned, or modified, a positive Art Jury ruling. Some homeowner received approval from the Art Jury and the Board stepped in and modified that ruling. 

I understand that some people are frustrated with some, past, Art Jury approvals. You just need to go into the very visible Village and look at the architectural styles of some buildings to realize that someone was asleep at the switch at some point. But I don't think this is a good way of fixing this problem.

Bottom Line

Rather than adding yet another hoop for home builders to jump through, maybe there needs to be more communication and discussions among the Art Jury, Association staff (they have a full building department), and the Board. In talking with some current Art Jurors, they too are horrified at what has occurred in the past. There seems to a consensus that Art Jury decision making could be improved.

But imposing this political, secretive, and builder unfriendly IDR process isn't the answer. I'm not even sure it would pass muster during a legal challenge as there is no basis for it in the Covenant or Davis-Stirling. 

As it stands now, if I were looking to remodel or, God forbid, build a new house, I would be getting chummy with the Board. Take them out to lunch. Play golf with them. Donate to their favorite charity. After all, their votes on your partially completed project may save you a lot of money, time and hassle in rework.

And no, I'm not joking.