#30-06, Masters v. Norbeck Grove Community Association (March 8, 2007) (Panel: McCabe, Kivitz, Negro)
The homeowner (HO) challenged the right of the homeowners association (HOA) to fine him for having built an outdoor fireplace without approval and to order him to remove it.He claimed that the HOA had approved plans he submitted to landscape his back yard and that these plans included the stone fireplace.
The evidence at the hearing showed that the HO had submitted a very detailed drawing for the complete landscaping of his backyard.Almost all of the notations on the plan were for the names of the flowers and shrubs he intended to plant.In addition, there was a handwritten note saying only "stone fireplace", with an arrow attached pointing to a specific location of the backyard.There was no description of the fireplace and the HO did not submit any plans for the fireplace itself.The HO testified that the notation was on the plans when he submitted them.The HOA witnesses who reviewed the plan testified that they could not recall if the "stone fireplace" notation was on the plans when they reviewed them.
The panel said that for the purposes of its decision, it assumed that the words "stone fireplace" were on the plans when they were submitted to the HOA.It ruled that the HOA thus gave permission to build some sort of stone fireplace.However, the HOA rules required that the HO must also submit detailed specifications for the proposed fireplace, which he never did and did not claim to have done.Thus the HOA never approved the fireplace that the HO actually constructed, and the HO could not reasonably rely on the HOA's approval of a "stone fireplace" as permission to build the stone fireplace he actually constructed.The panel further noted that the rules of the HOA required that permission to construct an improvement expires if the improvement is not begun within a year after approval is given.
The panel ruled that the HO violated the rules by constructing the stone fireplace without having submitted detailed plans for it.The panel further ruled that the general permission to build some sort of stone fireplace also expired, because it was now over a year since the HOA had approved the landscaping plans.Therefore, the panel ordered the HO to completely remove the fireplace within 60 days.