The Benefits of Deed Restriction Variances

Associations face an interesting decision when it comes to allowing owners to modify their properties in ways that are out of the norm or in some other way might “open Pandora’s Box.” As every professional community association manager, board member and architectural committee member knows, the easiest and safest thing to do is simple say “no”.

The problem with “no” is that it can lead to an unimaginative and stagnant community with owners feeling as though they have little opportunity to establish any level of creative individualism (the “cookie cutter syndrome”).

One way to address this conundrum is to make sure that the community has established a meaningful set of “Design Guidelines” that addresses not only what is specifically permitted and not permitted, but also the design concepts that assist the design review committee to make decisions that are “neither clearly permitted, nor not permitted”.

An example of helpful Design Guidelines wording could be: “While areas behind privacy wall are appropriate to establish a personal landscape theme, using non-native plants in the areas outside the privacy walls (front areas of lot) should be avoided. The streetscape should be varied and interesting from home to home, but not to the point of using non native plants, or under- or over-landscaping. A typical front yard area would have 2 trees in the large section of the front, with 1 tree behind the driveway and the lot line and 6-8 shrubs.”

Here’s an example of a simple yet effective submittal process:

1. An owner of a new home is submitting their preliminary landscape plans. The submittal, which includes diagrams on the blueprint of photograph of the lot, includes a total of 6 trees and 12 bushes, far more than the other homes in the community, but this is a large corner lot, with a two story home (small footprint).
   
   
   
2. The board grants a “Conditional Approval” (a.k.a. “variance”): After carefully reviewing the plans submitted, the association approves the plans as a “variance” to the Design Guidelines, using a template variance approval form. Included in the form is an explanation regarding why approval was granted based on the relative size of the un-landscaped front area of the lot, the fact that the trees are of a variety that are not expected to exceed 12 feet in height and 8 feet in width, and because all plants are well outside the site triangle of the intersection. The form also states that should the trees turn out to be larger at maturity than what was proposed in the submittal, they will need to be trimmed to a maximum size permitted as described previously or removed.

This type of creative approval process allows the association to make logical decisions based on the variables associated with each application. Should this same association receive a similar submittal in the future, the board or architectural review committee will have the already-established criteria to assist them in making a consistent decision. If the board simply said “approved” to the variance request for additional landscaping and did not document the variables that persuaded them to grant the exception, the association would be hard pressed not to allow any lot owner to plant the same number and size of plants and trees in the future.

The key point here is that while saying “no” is easier, saying “yes” the correct way, by documented variances, can lead to a more interesting streetscape while maintaining a strong, amicable relationship between the association and all its members.

Mark Lewis
AMS®, CMCA®, PCAM®
Executive Vice President -
Development & Strategic Planning
Associa
Tucson, AZ