Case No 07F-H067005-BFS

Complaint:
ACC prohibition of backyard playground

Source of Law:
Declaration; case history relating to CC&Rs

Discussion:
The record in this matter shows that Architectural Committee and the San Marcos Manor HOA board refused to consider Mr. Ketchum’s requests to approve the play structure until he reduced its height to 6’ or less. The board did not even suggest that it might approve a structure that was higher than 6’ until its August 14, 2006 letter to Mr. Ketchum, which was written after the board had consulted counsel and after fines had started to accrue under the notice policy. At that point, it offered to approve the play structure if its height was reduced to within 18” of the perimeter wall. This requirement is not found in the CC&Rs or Architectural Guidelines.

Mr. Ketchum is correct when he points out that neither the CC&Rs nor the Architectural Guidelines absolutely prohibited improvements higher than 6’ in members’ backyards. The Architectural Committee and HOA Board both refused to approve the play structure unless it was lowered to less than 6’, which would not have required any approval under the CC&Rs and Architectural Guidelines. Their refusal to exercise discretion was arbitrary and capricious.


Holding:
IT IS ORDERED granting Petitioner’s Petition and requiring Respondent to exercise its discretion under the CC&Rs and Architectural Guidelines to consider Petitioner’s request for approval of the play structure in his backyard.


Additional Remarks:
This is a usual case where board refuses to OK variances from ACC, gives verbal assurances, and then issues a decision that is inconsistent with CC&Rs. It arbitrarily decided a 6 foot height or less would be approved.

Mulcahy law firm represented HOA.