§ 10.3.1—Generally

Common interest ownership communities commonly regulate the exterior appearance of units. The usual goal of these regulations is to prevent "eyesores" and/or maintain a uniform exterior appearance. A uniform exterior appearance is considered important for at least two reasons: marketability and preservation of a community ambience.124 Documents, therefore, ordinarily restrict exterior changes.125 There may be meticulous specifications that set out in great detail what is and is not permitted. For example, colors and building materials may be specified or prohibited. In other communities, an architectural review committee is established that has the authority to review and approve or deny exterior changes. For example, a restriction in one Colorado association's documents read:

No building shall be erected, placed or altered on any residential lot until the construction plans and specifications and the plans showing the location of the structure have been approved by the architectural control committee. In the event the committee or its designated representative fails to approve or disapprove within 30 days after plans, specifications and plot plan have been submitted, or in the event no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenant shall be deemed to have been fully complied with.126

When the community documents set out specific architectural standards, questions arise about the reasonableness of those restrictions and, as discussed below, whether the association may be estopped to enforce them. A host of additional issues ensue when a reviewing board — whether an architectural review committee or the governing board — is given the authority to permit or deny changes. These include the extent and propriety of the authority delegated, the procedures that must be followed, and the appropriateness of any decisions made.

There is a specific statute of limitation in the CCIOA on actions to enforce the terms of any building restriction in the declaration, bylaws, articles, or rules and regulations, or to compel removal of a building or improvement that violates the terms of any building restriction. The statute requires these actions to be commenced within one year from the date from which the plaintiff knew, or in the exercise of reasonable diligence should have known, of the violation.127

Challengers to decisions made by either the governing board or a committee will be aided by a statute that requires associations to maintain records of governing board or committee actions to approve or deny any requests for design or architectural approval from unit owners.128

§ 10.3.2—The Substance of Building or Architectural Restrictions

The terms building or architectural restrictions should be viewed broadly to include construction materials,129 colors, architectural styles,130 minimum building costs,131 setbacks,132 size or height of buildings,133 lot area coverage,134 secondary structures,135 walls and fencing,136 and even landscaping.

Some restrictions, as discussed elsewhere,137 are proscribed or curtailed by the CCIOA. These concern (1) "renewable energy generation devices" (defined as "solar energy devices" or "wind-electric generators") and (2) "energy efficiency measures," which are awnings, shutters, trellises, ramadas, or other shade structures marketed for the purpose of reducing energy consumption; garage or attic fans and any associated vents or louvers; evaporative coolers; energy-efficient outdoor lighting devices; and retractable clotheslines. An association may not effectively prohibit renewable energy generation devices,138 but may impose reasonable aesthetic requirements,139 bona fide safety requirements,140 or reasonable restrictions on installation and use of wind-electric generators.141 Associations also may not effectively prevent installation or use of energy efficiency measures.142 Additionally, they are precluded from certain actions that interfere with electric vehicle charging systems.143 Finally, they are not permitted to impede certain water conservation measures.144

The CCIOA also limits the ability of associations to prevent removal of trees, shrubs, and vegetation when the removal creates a defensible space around a dwelling for fire mitigation purposes.145 Removal may not be prohibited if it complies with a written defensible space plan created for the property by the Colorado state forest service, by an individual or company certified to create a plan, or by the fire chief, fire marshal, or fire protection district within whose jurisdiction the dwelling is located. Any removal of trees, shrubs, or vegetation must be no more extensive than necessary to comply with the plan. The plan must be registered with the association before commencement of any work, and the association may require changes to the plan if it obtains the consent of the person, official, or agency that originally created it. Any removal work must comply with applicable association standards concerning slash removal, stump height, re-vegetation, and contractor regulations.

Beyond these specific statutory limitations, associations are largely free to adopt and enforce any building, architectural, or landscaping restrictions they find necessary or desirable.146 Restrictions may outlive their usefulness, however, and be effectively voided by a court. In Zavislak v. Shipman,147 the Colorado Supreme Court said that a court, exercising its equitable authority, has the power to remove or cancel restrictive covenants when it is shown that the covenants no longer serve the purpose for which they were imposed and are no longer beneficial to those claiming under them. The court subsequently limited that power, however, when it held that the court, when deciding if the purpose of restrictions has come to an end, must look to the subsequent development of the property that is the subject of the covenants, not changes to surrounding property. "As long as the original purpose of the covenants can still be accomplished and substantial benefit will inure to the restricted area by their enforcement, the covenants stand even though the subject property has a greater value if used for other purposes."148

Associations sometimes incorporate existing standards that have been enacted by some independent authority and make them applicable to the community. For example, in Pagosa Lakes Property Owners Ass'n v. Caywood,149 the declaration created an association and an environmental control committee (ECC) responsible for approving all proposed construction within the community. Over 20 years after the declaration was recorded, the association adopted, but did not record, rules and regulations drafted by the ECC for architecture and construction that required all homes to be built in compliance with the current version of the Uniform Building Code (UBC). After concluding a property owner was not complying with UBC requirements, the association issued a stop-work order that the owner ignored. In the subsequent litigation, the owner argued the association could not enforce the regulations without first recording them. However, the court said that property owners were on constructive notice that their property was subject to unrecorded restrictions and regulations by virtue of the recording of a declaration that created and granted broad powers to an association and an ECC. Thus, it rejected the argument that the requirement that structures comply with the UBC could be equated to a restrictive covenant, land use restriction, or regulation requiring separate recording. The question the property owner did not raise, but might have, is whether an association can adopt standards that are subject to amendment by an entity over which it has no control.150

Courts in various other jurisdictions have interpreted building or architectural restrictions in ways that Colorado attorneys need to take into account. For example, if a restriction lists specific prohibitions, the association may be required to permit anything not listed.151 Words employed to limit changes, especially "material alteration,"152 have been construed by courts, and associations may not want to be controlled by those interpretations. However, if the restrictions fail to define "alteration," that may preclude enforcement of any restriction.153

A few Colorado cases have interpreted specific words or phrases in building or architectural restrictions. A covenant that restricted height to "not more than one story measured from finished grade" but provided no specific measurement for determining the height of one story above finished grade was found to be ambiguous and unenforceable.154 When a restriction prohibits property from being used "directly or indirectly" for some stated purpose, it prevents parking and access incident to the prohibited use.155 The word "yard" refers to a relatively small area adjacent to or surrounding a dwelling, not to a large tract of land of many acres.156 Many building or architectural restrictions use the phrase "residential use." The CCIOA defines those words to mean "use for dwelling or recreational purposes" but not "spaces or units primarily used for commercial income from, or service to, the public."157

§ 10.3.3—The Architectural Control Committee

The general purpose of an architectural control committee is to prevent development that would violate the general plan of construction for the community and to assure property owners, through approval of building and site plans, that their plans conform to that scheme.158

There is a great deal of Colorado case law on architectural review or control committees, much of it preceding adoption of the CCIOA and addressing traditional subdivisions. There is also a CCIOA statute that should be the starting point for consideration of any committee action...

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