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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 54330
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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Permitting stage with my HOA. I was on the HOA board

Customer Question

Permitting stage with my HOA. I was on the HOA board previously for 9 years until 2012 at another home in the community. Only 82 lots in an upscale community - Tapestry Canyon in the Ahwatukee Foothills. There is a 30 foot height rule in the community. However, since the community formed in the late 90's there has been a case by case review of height on each lot. Many homes are in the 30-40 foot range and height variances were routinely approved. I am building on a lot that was previously approved in 2007 by the HOA and permitted by City of Phoenix for a 7800sq ft home with a 40 foot elevation. Owner/builder started construction, digging out the hillside lot, pouring foundation walls but never finished home. Homes on either side are 36 and 38 feet in elevation. last home approved and built in the community (2012) is almost 40 feet in elevation. No new construction since 2012. Board president says I am limited to 30 feet and no more variance even though the lot was previously approved for a much greater high. existing foundation walls are already 10' in height which limits me to a 20' build including roof which is basically a tract 2 story home in a community of million dollar plus homes. Our plans are for a 34 feet elevation. I think this lot/build is being singled out, especially since a much greater height variance was approved previously for this lot. Same board president and same community architect for the initial approval and for the current plans we are working to have approved. there is significant value in building a higher height home. Our lot is one of the highest in the community with incredible views. We are limited by the foundation walls that are already in place and previously approved. Is this something we can fight and win considering all the many prior height exceptions including to this specific lot?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.

Good afternoon. My name is ***** ***** I look forward to helping you.

Yes, you should fight this and in my experience will easily prevail. One, since the 40' height was previously approved and the house was started with the foundation walls in place, the board is not now going to be able to rescind that approval. Any such action would be arbitrary and capricious and would not stand. Two, although an HOA generally has the right to enforce the restrictions in the CC&R's, there are two circumstances where this right is lost...i) where the restrictions have been ignored in the past, and/or ii) where the restrictions have been selectively enforced. If, in spite of the restrictions in the CC&R's, if there are other instances where the situation exists that should fall within the restriction, then one of the foregoing must have occurred, and thus the HOA cannot then legally enforce the restriction against you. I would send the board a letter by certified mail with the foregoing information and let them know if they push this, you will be filing a suit against the HOA and the board members and officers individually for not only court approval, but also actual and punitive damages due to their willful misconduct in light of the facts.

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