POA reverses approval

[CWD]

What is the name of your state (only U.S. law)? Arkansas

After getting written approval from neighborhood architectural committee regarding building a backyard storage shed, the structure was built according to specs. After construction was complete, POA received a neighbor complaint. POA is now asking that the structure be removed or reduced in height. The "guidelines" (not covenant) indicates sheds should be no more than 1 ft above the fence line. The shed was approved at 2 feet above the fence line due to terrain issues. To appease the situation, the POA has offered to fund modification. However, a shorter structure would be rendered useless for it's intended purpose.
Anyone have an opinion regarding the ability of POA to force this action after first approving the structure?

 

[justalayman]

POA?

Not familiar with the acronym. Generally it is an HOA.

anyway, if it was all approved, then it sounds like there is nothing the POA can do to force the owner to alter the building.

 

[CWD]

POA/HOA synonymous.

Yes, my thoughts as well. They refer to a "tear down" law which I am unable to find. Any information on this would be appreciated.

Would not be such an issue but the material cost and labor, if torn down, would be a substantial loss. Modification is not an option as the structure could no longer be used, even though they offer to pay for it.

Not wanting this to become a legal issue but it may not be avoidable.

Thanks

 

[justalayman]

Since they did approve the building and it was built to the design specs, if they do figure out a way to demand it's removal, I would definitely look to the POA to pay all expenses incurred for building, the removal of the building, and the restoration of the area altered because of the building.

It's pretty hard for them to deny a signed approval of the request to build. All of your actions from that time on were based on that approval so they POA should be able to be held liable for all costs incurred.

 

[CWD]

One other issue/question ... Although I feel the POA is completely defenseless, what about the complainant neighbor? Any recourse to the homeowner? Could the complainant seek damages from the POA, the homeowner, or both?

 

[justalayman]

I see no claims they would have against the homeowner/builder. They acted only as permitted. They might have a claim against the POA if there were any rules or procedures not followed in granting the permit. As such, ultimately, the neighbor could conceivably seek to have the building removed. Of course, this gives rise to a claim by the owner of the building against the POA though.

 

[CWD]

My thinking exactly! Sounds like if this goes further the POA could be legally challenged by both neighbor and building owner.

 

[drewguy]

I'll throw a little cold water in here.

If this were a zoning case (i.e., municipal government) then as a general matter they would be able to require change to a "non-conforming" use. In some places, there may be an equitable estoppel against the municipality changing their decision. An estoppel may be created where the person obtained approval for a non-conforming use and acted in good-faith reliance on that approval to build the structure. That is, did the builder know that the structure as planned/approved was not in conformance with the regulations or should it have known. In some states there may also be a consideration of the importance of prohibiting the use to maintaining proper zoning (which relates to how egregiously out of line with surrounding zoning is--e.g., 1-foot too tall versus a gas station in a residential area).

Let's use those principles as a starting point.
1) Good faith: Probably--it sounds like the POA doesn't even have the 1-foot requirement in its written regulations, or it's not obvious.
2) Reliance on the approval--Clearly OP would have changed plans or not built if he had been told it had to be 1-foot shorter
3) Zoning/POA Regs-1-foot deviation seems relatively unimportant to overall restrictions of POA, particularly if it's not formalized.

So, overall, OP should have a good case for an estoppel.

However, does that mean he has the "right" to build it and keep it? Not necessarily. If the POA wanted to pay the expenses of building it and removing it then presumably it may. It's not a property right to keep a non-conforming use; as a practical matter, however, a POA isn't going to pay to take down the structure in most instances.

Keep in mind that what I've said is all by analogy to zoning cases, which may not be perfect. But those concepts are derived from broader principles of law.

So, OP, I would hang tough and insist that the POA pay for construction costs and for removal costs if that's what they want.

As for the neighbor--what exactly are his damages? Looking at the peak of a roof that's 1 foot too high? Buy him a couple of trees (or tell the POA to).