Do I have a case for Selective enforcement and discrimination? Does anyone have any case law in regards to my situation?

[Rayenissakharian]

Rayen from California. I live in a community and the HOA is giving me problems in regards to a project I want to build. My neighbor built a very similar project with the same contractor I’m using and they allowed him to do it. The only difference is that the contractor is suing the HOA for other reasons now and I feel that they are trying to punish him by not letting me build my project. The reason they say I can’t build my project is because they’re saying it requires too much dirt even though my neighbor used even more than I did. I checked the CC&Rs and it just says you can’t use an excessive amount of dirt to build a slope but that is very vague! I asked them how much an appropriate amount of dirt would be and they say they don’t know but what I’m using is too much. They are also not enforcing other rules in the CC&Rs for my other neighbors like allowing them to build walls over 10 feet tall. Do I have a case for Selective enforcement and discrimination? Does anyone have any case law in regards to my situation?

 

[Zigner]

This really sounds like something that is going to be addressed in your bylaws. If you don't like the way the board is handling this, then you'll want to work towards effecting a change to the board membership.

 

[PayrollHRGuy]

^^^^^^^^^^^^^^
What Zigner said and/or use a different contractor.

 

[Shadowbunny]

Rayen from California. I live in a community and the HOA is giving me problems in regards to a project I want to build. My neighbor built a very similar project with the same contractor I’m using and they allowed him to do it. The only difference is that the contractor is suing the HOA for other reasons now and I feel that they are trying to punish him by not letting me build my project. The reason they say I can’t build my project is because they’re saying it requires too much dirt even though my neighbor used even more than I did. I checked the CC&Rs and it just says you can’t use an excessive amount of dirt to build a slope but that is very vague! I asked them how much an appropriate amount of dirt would be and they say they don’t know but what I’m using is too much. They are also not enforcing other rules in the CC&Rs for my other neighbors like allowing them to build walls over 10 feet tall. Do I have a case for Selective enforcement and discrimination? Does anyone have any case law in regards to my situation?

Not all discrimination is illegal; and being mad at your contractor does NOT make him (or you) a protected class.

 

[Taxing Matters]

Do I have a case for Selective enforcement and discrimination? Does anyone have any case law in regards to my situation?

I see nothing that suggests illegal discrimination. However, you may be able to assert that the HOA is being arbitrary or punitive in its enforcement of the rules, and that may get you approved for your project. The fact that the HOA can't tell you how much dirt is too much tells me that they have no objective criteria and that suggests arbitrary enforcement. I'm not in your state, but I would guess California is even more favorable to you on these issues than my state. And in my state I represented a client who had much the same problem: the HOA would not approve her proposed shed for the backyard even though there were at least half a dozen others who had sheds at least as big that the HOA had not acted to remove. I had the case law that set out that an HOA that arbitrarily or selectively enforces the rules loses the right to enforce the HOA rules altogether. The HOA was initially arrogant and dismissive of my client's position. But when I wrote the HOA (and copied their attorney) pointing out the case law and threatening to sue the HOA in state district court with an action to strip the HOA of all enforcement power (which would have left the HOA with only the power to levy fees to maintain common areas) the HOA suddenly sang a different tune. I suspect the HOA lawyer informed the board the risk the HOA would run if it went to court, and the board wisely decided the shed was not the hill on which it wanted to make that kind of stand. The point here is that if you want to get the project approved, you'll likely need to get a lawyer experienced in representing homeowners against their HOAs and be willing to spend some money on legal fees to show the HOA that you are serious about pursuing it. That may get the HOA to back off, especially since it is battling the lawsuit from your contractor already. You sometimes have to get aggressive in dealing with HOA boards or they'll walk all over you.

HOAs are often governed by little Napoleons who want to dictate to everyone else how to live their lives, or least how to maintain their homes. That is why I decided long ago to avoid buying a home that is governed by an HOA. Dealing with the city and county can be bad enough. Why voluntarily subject yourself to yet another layer of people wanting to tell you what to do?