Architectural Variances

The architectural control provisions of an association’s governing documents may permit the association to, in extraordinary circumstances, issue a member a variance from compliance with one or more of the association’s architectural standards.  An association’s decision to issue a variance has been held to be analogous to the issuance of a zoning variance by an administrative agency, and must therefore be limited to unique and extraordinary circumstances where substantial evidence would justify the desired variance:

“In the zoning context as well as here, a departure from the master plan in the Declaration stands to affect most adversely those who hold rights in neighboring property. Hence, what the California Supreme Court has stated with regard to judicial review of grants of variances applies equally well to the Association’s actions herein: ‘[C]ourts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.’ (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518 [113 Cal.Rptr. 836, 522 P.2d 12].) For nearly identical reasons, we conclude that the courts must be available to protect neighboring property interests from arbitrary actions by homeowner associations.” (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 652.)

Variance Requirements
Subject to any additional restrictions or requirements in an association’s governing documents, an architectural variance may typically be issued where:

  • Extraordinary circumstances exist that justify the variance.  Association governing documents often describe such extraordinary circumstances as those involving topography, natural obstructions, hardship or other environmental considerations;
  • The variance is not in conflict with the governing documents; and
  • Proper notice is provided.  Such notice may include notice to: (a) applicable city or county building departments (i.e., if the variance involves setbacks or building code issues), (b) the board of directors (i.e., in situations where the body issuing the variance is separate from the board, such as an architectural committee), and (c) surrounding homeowners.
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Related Case Law

  • Topanga Assn. for a Scenic Community v. County of Los Angeles
    (1974) 11 Cal.3d 506

    [Zoning Variance] An administrative agency must render findings supporting its decision to issue a zoning variance, and such findings must be supported by substantial evidence.

  • Cohen v. Kite Hill Community Association
    (1983) 142 Cal.App.3d 642

    [Architectural Control; Duty to Act in Good Faith] When exercising its architectural control authority, an association owes a fiduciary duty to its members to act in good faith, and to not make decisions that are arbitrary or capricious.