Adoption of a procedure and guidelines for the exercise of Architectural Review Authority
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File: 2021-11-09ArchitecturalReviewProceduresGuidelines[Recorded]-Elliott Ranch.pdf · Recording: 22004465 · Document date: 2021-11-09 · Effective: 2022-01-31 · Pages: 9
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22004465 RESOLUTION Total Pages: 9
Filedand Recorded:01/31/202209:56:53AM
CERTIFIED RESOLUTIONS OF THE BOARD OF DIRECTORS
OF ELLIOTT RANCH HOMEOWNERS ASSOCIATION, INC.
ADOPTION OF PROCEDURES AND GUIDELINES FOR
THE EXERCISE OF ARCHITECTURAL REVIEW AUTHORITY
PURSUANT TO CHAPTER 209 OF THE TEXAS PROPERTY CODE
The undersigned, Donra Ceurtrig ht
, as the duly elected, qualified, and
acting Secretary of Elliott Ranch Homeowners Association, Inc., a Texas nonprofit corporation
(the “"Association"), hereby certifies on behalf of the Association that the following resolutions
were duly adopted by the Board of Directors of the Association (the “Board") at a meeting of
the Board held on Decem her /5 , 2021, and that such preamble and resolutions have
not been amended or rescinded and are in full force and effect on the date hereof.
WHEREAS, the Association is a property owners association governed by Chapter 209
of the Texas Property Code and is vested with the authority to enforce restrictive covenants and
other terms and provisions of that certain Amended and Restated Declaration of Covenants and
Restrictions for Elliott Ranch recorded at Volume 1512, Page 913 in the Official Public Records
of Hays County, Texas, as may be amended from time to time (collectively, the “Declaration'")
WHEREAS, Chapter 209 of the Texas Property Code imposes certain procedures for the
denial of a property owner's application for architectural review of proposed construction or
modification of an improvement and establishes procedures for appealing a denial of an
application for architectural review to the Association's Board of Directors
WHEREAS, the Board desires to adopt procedures and guidelines for conducting
architectural review of a property owner's application for proposed construction or modification
of an improvement in compliance with Chapter 209 of the Texas Property Code.
NOW, THEREFORE, BE IT RESOLVED, that the Board hereby adopts the procedures
and guidelines set forth on Exhibit "A', attached hereto and incorporated herein by reference.
BE IT RESOLVED, FURTHER, that, the Secretary of the Association is hereby
authorized and empowered, in the name and on behalf of the Association, from time to time to
do and perform all such further acts and things and to execute and deliver all such further
instruments as he or she may deem necessary or advisable to carry out and effectuate the intent
and purposes of the foregoing resolutions and of the actions referred to therein.
BE IT RESOLVED, FURTHER, that any actions taken by the officers or directors of the
Association prior to the date of this action or hereafter that are within the authority conferred
hereby are hereby ratified, confirmed and approved as the act and deed of the Association.
[SIGNATURE PAGE FOLLOWS]
ELLIOTTRANCH HOMEOWNERSASSOCLA TION, NC.
RESOLUTIONADOPTINGPROCEDURESANDGUIDELINESFOR THE EXERCISE OFARCHITECTURAL REVIEW
AUTHORITY PURSUANT TOCHAPTER 209OF THETEXAS PROPERTY CODE
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22004465
Page 2 of 9
SECRETARY'S CERTIFICATE
IN WITNESS WHEREOF, the undersigned has executed this Certificate as Secretary on behaif
of the Association to be effective upon the recording of this document in the Official Public
Records of Hays County, Texas.
By: ma
Title: Secretary
STATE OF TEXAS
COUNTY OF HAYS $
'Cat Chf, Secretary of Elliott Ranch Homeowners Association, Inc., a
Fexas non-profit corporation, On behalf of said non-profit corporation.
CHRISTINA JELLISON
Notary ID #126370443
My Commission Expires
Ndtary Public Signature
November 2, 2023
AFTER RECORDING PLEASE RETURN TO:
Gregory S. Cagle
CAGLE PUGH, LTD. LLP
4301 Westbank Drive, Ste. A-150
Austin, Texas 78746
ELLIOTT RANCH HOMEOWNERSASSOCIA TION,INC.
RESOLUTIONADOPTINGPROCEDURESANDGUIDELINESFORTHEEXERCISEOFARCHITECTURALREVIEW
AUTHORITYPURSUANTTOCHAPTER2O9OFTHETEXASPROPERTYCODE
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22004465
EXHIBIT A
ELLIOTT RANCH HOMEOWNERS ASSOCIATION, INC.
PROCEDURES AND GUIDELINES FOR
THE EXERCISE OF ARCHITECTURAL REVIEW AUTHORITY
PURSUANT TO CHAPTER 209 OF THE TEXAS PROPERTY CODE
ARTICLE I
Introduction
The architectural review of applications for construction or modification of improvements is a
vital task for ensuring that improvements constructed in Elliott Ranch Homeowners Association, Inc.
community (the "Community") are in compliance with the terms and provisions of the governing
documents applicable to the community. Such task commonly invoives a high degree of discretionary
determinations, which may be scrutinized or disagreed with by others after the fact. In order to provide
greater transparency and procedures for redress when property owners disagree with architectural review
decisions concerning their property, the Texas legislature enacted Section 209.00505 of the Texas
Property Code, which imposes new procedures for the denial of a property owner's application for
architectural review and establishes procedures for appealing a denial of an application for architectural
review to the property owners association's board of directors.
These procedures and guidelines are intended to assist the Architectural Control Committee, (the
"Architectural Committee") in the review and approval or denial of an application for architectural
review of proposed construction or modification of an improvement and, if applicable, the appellate
review of a denied application (the “Guidelines"). The Guidelines have been prepared by the Cagle Pugh
law firm specifically for the Architectural Commitee and the Board of Directors (the "Board') of Elliott
Ranch Homeowners Association, Inc., (the "Association') and are based on that certain Amended and
Restated Declaration of Covenants and Restrictions for Elliott Ranch recorded at Volume 1512.
Page 913 in the Official Public Records of Hays County, Texas, as amended from time to time
(collectively, the "Declaration").
ARTICLE I
Purpose
The purpose of the Architectural Committee is to serve as a "gate-keeping" function for the
construction of improvements in a development. In most Declarations, property owners are required to
submit an application for the construction of new improvements or the modification of existing
improvements to the Architectural Committee for its review in advance of initiating construction, and the
Architectural Committee is vested with exclusive discretion to determine whether such proposed
construction of new improvements or modification of existing improvements is in compliance with the
Restrictive Covenants applicable to the community. Often such task also involves a subjective
determination as to whether the proposed construction is aesthetically attractive and harmonious with the
other structures in the community. The authority to review and approve construction of new
improvements and/or modifications to existing improvements is generally referred to as the “Architectural
Review Authority."
ARTICLE III
Improvements Requiring Approval of the Architectural Committee
The necessity of obtaining approvai from an architectural committee is derived from a land-use
restriction contained in the dedicatory instruments applicable to the community. Such land-use restriction
ELLIOTT RANCH HOMEOWNERS ASSOCIA TION, INC.
PROCEDURESANDGUIDELINES FOR THE EXERCISE OFARCHITECTURALREVIEWAUTHORITY
PURSUANTTOCHAPTER209OFTHETEXASPROPERTYCODE
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22004465
EXHIBIT A
will often restrict property owners from constructing or modifying certain improvements, buildings and/or
structures without the advance written approval of the architectural committee. The scope of items
requiring approval of the architectural committee is specified by the dedicatory instruments applicable to
the community.
The Declaration for the Community requires the following items to be submitted to and approved
by the Architectural Committee:
1.
No Improvement, and no antenna nor any mechanism or devise that provides for the
collection, storage or distribution of solar or wind energy for use as thermal, mechanical or electrical
energy and that is not part of a building, shall be erected. placed. altered or maintained on any Lot until a
copy of the Plans and Specifications and a plan showing the location of such Improvements have been
delivered to and approved by the Committee. "Improvement" shall mean every structure and all
appurtenances thereto of every type and kind. including but not limited to buildings, barns, outbuildings,
storage sheds, patios, tennis courts, swimming pools, garages, storage buildings, fences, screening walls,
retaining walls, stairs, decks, landscaping. poles. signs. exterior air conditioning, water softener fixtures or
equipment, poles, pumps, wells, tanks, reservoirs, pipes, lines, meters, antennas, towers, windmills, and
any faculties used in connection with water, sanitary sewer, wastewater, septic tank, storm sewer,
drainage, gas, electric, telephone, regular or cable television, or other utilities.
ARTICLE IV
Scope of Architectural Review Authority
The authority of the Architectural Committee to approve or deny a property owner's application
to construct or modify an improvement is not without limitation. In a 1981 case law opinion, entitled
Davis v. Huey, the Texas Supreme Court held that dedicatory instrument provisions requiring the
submission of plans to and prior consent of an architectural committee before construction of
improvements are valid "insofar as they furnish adequate notice to the homeowners of the specific
restriction sought to be enforced" and that an architectural committee may not impose building
restrictions upon property owners that are more stringent than those specifically set out in the dedicatory
instruments through its discretionary authority to disapprove proposed construction projects. In other
words, even if a dedicatory instrument vests an architectural committee with discretionary approval
authority, the architectural committee is not permitted to alter or expand the specific building restrictions
or to impose limitations on a property owner's construction or remodeling project that are more restrictive
than the specific restrictions set out elsewhere in the dedicatory instrument. Thus, the scope of an
architectural committee's review of an application for proposed construction or modification of an
improvement is generally dictated by the express provisions of the dedicatory instrument establishing
such committee, and an architectural committee may not exercise architectural review authority over
characteristics of a proposed improvement that is not expressly within such scope of review.
The permitted scope of Architectural Review Authority by the Architectural Committee
established by the Declaration is as follows:
1.
The Committee shall approve the proposed plans as to the quality of workmanship and
materials, harmony of external design with the existing Improvements and as to the location with respect
to topography and finished grade elevations.
ELLIOTTRANCH HOMEOWNERSASSOCLATION, INC.
PURSUANTTOCHAPTER2O9OFTHETEXASPROPERTYCODE
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EXHIBIT A
ARTICLE V
Variance Authority
It is very common for a dedicatory instrument to vest an architectural committee with the power
to grant a property owner a variance from compliance with one or more of the land-use restrictions in the
dedicatory instrument regarding construction or modification of an improvement. When such variance
authority is granted to an architectural committee it may be limited to certain types of land-use restrictions
or the architectural committee may be restricted from granting a variance except in limited circumstances
where the architectural committee determines there is good cause or justification for allowing the
deviation and such variance will not have an adverse impact on the community.
The Declaration does grant the Architectural Committee the authority to grant variances when, in
the opinion of the Committee. a waiver or modification of any of the restrictive covenants of the
Declaration would not impair or detract from the high quality of the Property.
In addition, the Architectural Committee may grant conditional variances (i.e., variances that are
conditioned upon the continued existence of certain conditions) or temporary variances (i.e., variances
that expire upon the expiration of specified period of time or upon an event, such as the sale of the lot).
The variance must be in writing and be in recordable form.
ARTICLE VI
Time Period for Review
The Declaration provides that an application for architectural review must be completed and
communicated to the requesting property owner (or his or her representative) within thirty (30) days from
submission. It is very important that the Architectural Committee comply with this deadline as the failure
to do so will result in an approval of the application by default.
If the Architectural Committee does not have sufficient information from the requesting property
owner to be able to approve an application within the specified time period to do so, the Architectural
Committee should deny the application for such reason before the explanation of the deadline, request the
additional information needed to perform a review of the application, and inform the requesting property
owner that the application will be reconsidered by the Architectural Committee upon receipt of the
requested information.
ARTICLE VII
Denial of an Application
Section 209.00505 of the Texas Property Code requires ali denials of an application for
construction or modification of an improvement to be in writing and delivered to the requesting property
owner by certified mail, hand-delivery, or electronic delivery. The written denial must also (1) describe
the basis for the denial in reasonable detail and changes, if any, to the application or improvements
required as a condition to approval; and (2) inform the property owner that he or she may request a
hearing with the board of directors for the purpose of appealing the denial by the architectural committee
on or before the thirtieth (3oth) day after the date the written denial is mailed, hand-delivered or
electronically delivered to the property owner.
Based on the permitted scope of Architectural Review Authority described above, an application
may be denied by the Architectural Committee for one (1) or more of the following reasons:
ELLIOTTRANCHHOMEOWNERSASSOCLATION,INC.
PROCEDURESANDGUIDELINES FORTHE EXERCISE OFARCHITECTURALREVIEWAUTHORITY
PURSUANT TO CHAPTER 209 OF THE TEXAS PROPERTY CODE
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EXHIBIT A
1. The Committee disapproved the proposed plans due to the lack of quality of
workmanship and materials.
2. The Committee disapproved the proposed plans due to the lack of harmony of external
design with the existing Improvements.
3. The Committee disapproved the proposed plans due to the location with respect to
topography and finished grade elevations.
A template letter for denial of an application that conforms to the Architectural Committee's
scope of Architectural Review Authority under the Declaration and complies with the requirements of
Section 209.00505 of the Texas Property Code is attached hereto as Exhibit A-1 and the Architectural
Committee is strongly encouraged to use such template when denying a property owner's application for
architectural review. The denial of an application letter should state all applicable reasons for the denial.
ARTICLE VIII
Appellate Review by the Board
If a request for an appellate review hearing is timely received from a property owner, the Board
must conduct an appellate review hearing not later than the thirtieth (3oth) day after the date the Board
receives the property owner's request and the Board must provide the property owner notice of the date,
time, and place of the hearing not later than the tenth (1oth) day before the date of the hearing.
During an appellate review hearing, the Board, or a designated representative of the Association,
and the owner, or his or her designated representative, will each be provided the opportunity to discuss,
verify facts, and resolve the denial of the property owner's application or request for the construction or
modification of an improvement, and the changes, if any, requested by the architectural committee in the
written denial provided to the property owner.
The Board or the property owner may request a postponement of the scheduled hearing. If
requested, a postponement shall be granted for a period of not more than ten (10) days. Subsequent
postponements may be granted by agreement of the parties. The Association and/or the property owner
may make an audio recording of the appellate review hearing.
The Board is authorized to affirm, modify, or reverse, in whole or in part, any decision of the
Architectural Committee concerning an application for construction of an improvement, as consistent
with the Declaration. In other words, the Board is limited to the same scope of architectural review as the
Architectural Committee.
ELLIOTT RANCH HOMEOWNERS ASSOCIA TION, INC.
PROCEDURESANDGUIDELINESFOR THEEXERCISEOFARCHITECTURALREVIEWAUTHORITY
PURSUANT TOCHAPTER 209 OF THE TEXAS PROPERTY CODE
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EXHIBIT A-1
ELLIOTT RANCH HOMEOWNERS ASSOCIATION, INC.
Architectural Control Committee
2021
[Insert Owner Name]
Via Certified Mail, Hand-Delivery, and/or
Electronic Delivery
RE: Denial of application for construction or modification of improvement at
(the
"Property") submitted to the Architectural Control Committee (the “Committee")
on
, 2021 (the “"Application")
Dear [insert owner name]:
Thank you for your submission of the Application. The Committee has denied the Application for
the following reasons:
The Committee disapproved the proposed plans due to the lack of quality of workmanship and
materials.
The Committee disapproved the proposed plans due to the iack of harmony of external design with
the existing Improvements.
The Committee disapproved the proposed plans due to the location with respect to topography and
finished grade elevations.
instrument and/or requested by the Committee. Please provided the required/requested information and
the Committee will reconsider the Application
Other:
[if applicable - add the following provision]
Notwithstanding the denial above, the Committee shall reconsider its denial and approve the Application
on the following conditions:
Pursuant to Section 209.00505 of the Texas Property Code, you may request an appellate review
hearing with the Board of Directors of Elliott Ranch Homeowners Association, Inc., (the “Board"). A
ELLIOTTRANCH HOMEOWNERSASSOCIATION,INC.
PROCEDURESAND GUIDELINES FOR THE EXERCISE OFARCHITECTURAL REVIEW AUTHORITY
PURSUANTTOCHAPTER2O9OFTHETEXASPROPERTYCODE
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EXHIBIT A-1
request for an appellate review hearing must be delivered to the Board on or before the thirtieth (3oth) day
from the date this notice was transmitted to you at the following mailing and/or email address:
Sincerely,
[insert name]
[insert title]
ELLIOTTRANCHHOMEOWNERSASSOCLATION,INC.
PROCEDURESANDGUIDELINESFORTHEEXERCISEOFARCHITECTURALREVIEWAUTHORITY
PURSUANTTOCHAPTER209OFTHETEXASPROPERTYCODE
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THE STATE OF TEXAS
COUNTY OF HAYS
I hereby certify that this instrument was FILED on the
date and the time stamped hereon by me and was duly
RECORDED in the Records of Hays County, Texas.
22004465 RESOLUTION
01/31/2022 09:56:53 AM Total Fees: $54.00
Elaine H. Cardenas, MBA, PhD,County Clerk
Hays County, Texas
EauindlCarsionas-
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