Fees for Review of Plans
Utah law prohibits an association from charging a fee for review and approval of an owner's construction plans that exceeds the actual costs of reviewing and approving the plans. See Sections 57-8-6.7 and 57-8a-109.
Discretionary design controls must be reasonably exercised
Discretionary design controls, that is, open-ended controls that lack objective standards or guidelines, create two kinds of risks for property owners. They may not be able to develop in accordance with their expectations because they cannot predict how the controls will be applied. Second, property owners may be subject to arbitrary or discriminatory treatment because there are no standards against which the appropriateness of the power’s exercise can be measured.1 Because design controls are as likely to increase property values by preventing aesthetic nuisances, however, courts have responded to these concerns by imposing a reasonableness requirement on the exercise of design controls, rather than by invalidating them.2
1. For how the Utah Court of Appeals addressed the argument by one party that an HOA's requirement was arbitrary and not subject to any standard, see Rapoport v. Four Lakes Village Homeowners Ass'n., 2013 UT App 78, 300 P. 3d 327, at ¶ 17.
2. See, e.g., Norris v. Phillips, 626 P.2d 717 (Colo.Ct.App.1980) (standard for review of architectural-control-committee decisions is reasonableness and good faith; it applies to both refusals and approvals). Citing Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 449 P.2d 361 (1969) for refusals, and Rywalt v. Writer Corp., 34 Colo.App. 334, 526 P.2d 316 (1974) for approvals. See also Riss v. Angel, 934 P.2d 669 (Wash.1997) (en banc) (approval standards like conformity and harmony of external design and general quality with existing standards of the neighborhood are upheld, but become unenforceable if applied so inconsistently as to result in a wide variety of buildings; authority must be exercised reasonably and in good faith). See also Restatement Third, Property (Servitudes) § 6.9 d, e.
As the legitimacy and utility of design controls have become more widely accepted, courts have tended to Members Area. This resource is available to members. Join us by subscribing today!
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(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)