Virginia Lawyers Weekly VA Lawyers Weekly
Although the Loudoun County Circuit Court finds a homeowner, in building her home, committed multiple violations of the plan approved by the Architectural Review Board, the court will assess damages in favor of plaintiff homeowners’ association on the basis of “one overriding violation,” the failure to comply with the ARB-approved application.
Plaintiff alleges defendant failed to build the house in compliance with the approved application to the Architectural Review Board (ARB) and with the procedures established by the ARB. Plaintiff asks the court to compel defendant to bring the house into compliance with the application approved by the ARB and governing procedures and enter a judgment against defendant for costs and attorney’s fees pursuant to Va. Code § 55-515(A) and for charges assessed pursuant to Va. Code § 55-513(B)(ii).
The court finds plaintiff has met its burden of establishing the validity of the restrictive covenants and establishing that defendant violated the covenants by failing to build her house in accordance with the approved application and governing procedures. Defendant, by signing the approval letter from the ARB, acknowledged that she must reapply to the ARB for approval if she wished to make any changes to the application. The testimony and evidence at trial reflects that the house constructed by defendant failed to comply with numerous aspects of the approved application and that defendant did not obtain approval for the changes she made.
At the conclusion of plaintiff’s case-in-chief, the court struck 18 of the alleged 41 violations and partially struck one additional violation. With respect to the remaining alleged violations, the court makes the following general findings. The court finds that, to the extent defendant relies on general note 2 of the plans to avoid complying with the approved application, she was still required to apply to the ARB for approval of any changes to the application, and therefore the court rejects this argument. The court also finds that defendant’s argument that it is unknown if the existing brick on the house can be matched to correct several of the violations does not amount to a defense of hardship or impossibility. The evidence reflects that the chairman of the ARB was able to purchase the same bricks used on the house in June 2011 and that the style of brick is designed to incorporate bricks of various shades. The court further finds that defendant has not met her burden of impossibility, with the exception that it may not be possible to fit 16-inch shutters on some of the windows with the other required features of the house, and finds that defendant has proved hardship only in instances where the necessary corrections would compromise the structural integrity of the house.
To assist the court with the violations in which the court finds that defendant failed to comply with the approved application, the court will appoint a building engineer to serve as a special commissioner. The building engineer is required to determine whether the necessary corrections would compromise the structural integrity of the house because such a determination is beyond the expertise of the court. Defendant shall be bear the cost of the special commissioner. In any instance where the special commissioner does not find the corrections would compromise the structural integrity of the house, defendant shall have until June 1, 2012, to complete all work necessary to bring the house into compliance with the approved application.
The court finds the following violations: Defendant violated the approved application by eliminating quoins around the secondary entrance on the front elevation; the decorative arch over the secondary entrance on the front elevation; the pillars in the secondary entrance on the front elevation; the flare in the chimney design on the left elevation; the middle window on the second story of the bay on the rear elevation; the two windows from the garage on the rear elevation; the shutter from some of the windows. Defendant also violated the approved application by using stucco to construct the dormers instead of the required Hardiplank Lap Siding Select Cedarmill; not building the chimney to the specified height; replacing the required decorative brick cap for the chimney on the left elevation with a copper cap; placing a vent on the side rather than the top of the chimney on the left elevation; causing a chimney to be added on the rear elevation; using stucco, not brick, on the upper deck on the rear elevation; causing three windows on and proximal to the upper deck on the rear elevation to be taller than specified in the plans; installing two, not three, garage doors and by changing the design on the garage doors; not installing copper gutters on all elevations of the house; failing to obtain approval from the ARB for the material used on the fence prior to the installation.
Plaintiff asks the court to enter a judgment for charges assessed pursuant to Va. Code § 55-513(B)(ii), which provides that the board of directors shall have power, to the extent the declarations or rules and regulations duly adopted expressly provide, to assess charges for violation of the declaration or rules and regulations. The evidence shows that on Oct. 6, 2001, the board of directors for plaintiff adopted a resolution authorizing the board to assess charges for violations of the declarations or rules and regulations and provides the charge shall not exceed $50 for a single offense or $10 per day for any offense of a continuing nature limited to a period of 90 days.
The court takes note of Farran v. Olde Belhaven Towne Owners Ass’n, in which the Fairfax Circuit Court found the authority to assess charges under § 55-513(B) is limited to situations where an association’s declaration expressly allows it to impose fines or its declaration expressly allows it to adopt rules or regulations which impose fines. The court, however finds the plain language of § 55-513(B) allows the board of directors to authorize charges in either the declaration or the rules and regulations. Although the Virginia Supreme Court has not directly addressed the issue, it noted in Lake Monticello Owners Ass’n v. Lake that the property owner association, if their rules and regulations expressly provided, could assess charges for violations of its rules and regulations. The court therefore finds plaintiff, pursuant to its resolution adopted Oct. 6, 2011, has the authority to assess charges for violations of the declaration and rules and regulations.
The court further finds plaintiff complied with the notice requirements in § 55-513 and therefore is entitled to an assessment against defendant’s o tint eh amount of $10 to be assessed for a period of 90 days, or a total of $900, for continuing failure to comply with the approved application. Although plaintiff asks the court to charge defendant for 41 separate violations, the court finds the various alleged violations amount to one overriding violation, plaintiff’s failure to comply with the application approved by the ARB to build her house.
Lee’s Crossing Homeowners’ Ass’n v. Zinone (Horne) No. 50272, Sept. 13, 2011; Loudoun County Cir.Ct.; William P. Daly Jr., Joseph T. Prendergast, Vernon W. Johnson III for the parties. VLW 011-8-181, 16 pp.
