Post by leokeeler on Nov 28, 2015 14:04:25 GMT -7
NOTE: Changes in the Declaration language are denoted with BOLD italics (new language) and strikethrough (removed language.)
Lawyers’ input: Since “necessary” is too nebulous and hard to defend in court, the better language is “would create a reasonable hardship” since it is easier to define and is in keeping with intent of this Section.
12.01. Variances, Waivers. The Association reserves the right to waive or grant variances to any of the provisions of this Declaration, where, in its discretion, it believes the sameto be necessary would create a reasonable hardship and where the same will not be injurious to the rest of the Community.
SIMILAR RECOMMENDED CHANGE TO THE MASTER PLAN 4.2 CRITERIA FOR GRANTING A VARIANCE:
Lawyers’ input: Waivers are never good, but waivers are necessary at this point since the Master Plan has problems that need fixing/eliminating, and members voted in favor of the Master Plan because there was a variance provision for unusual circumstances. (For instance, there is at least one property that is 100 feet wide that cannot be built upon due to the increase in setbacks in the Master Plan.) Until the Master Plan is changed the proposed language is better by establishing this as criteria to consider. Since not all situations requiring a waiver will meet all five criteria, the current language defeats the intent of the section.
4.2 Criteria for Granting a Variance. A variance may be grantedupon finding compliance with all of considering the following criteria:
1. Exceptional or unusual circumstances exist over which the Landowner has no control (for example, topography).
2. The requested variance is not materially detrimental to neighboring properties; or if the requested variance may adversely affect neighbors, the Landowner requesting the variance may offer mitigating actions to help offset any detrimental effect of the requested variance, subject to review by the affected Landowners and the Association Board.
3. The variance requested is the minimum variance to remedy a particular circumstance.
4. No more than one (1) variance process will be allowed per Original Parcel for reducing acreage size below the minimum acreage or that would increase the number of Tracts/Lots beyond that which is established in the Residential Topographical Areas and Density Schedule (Section 3.5).
5. All variances must meet local, county and state requirements.
Lawyers’ input: Since “necessary” is too nebulous and hard to defend in court, the better language is “would create a reasonable hardship” since it is easier to define and is in keeping with intent of this Section.
12.01. Variances, Waivers. The Association reserves the right to waive or grant variances to any of the provisions of this Declaration, where, in its discretion, it believes the same
SIMILAR RECOMMENDED CHANGE TO THE MASTER PLAN 4.2 CRITERIA FOR GRANTING A VARIANCE:
Lawyers’ input: Waivers are never good, but waivers are necessary at this point since the Master Plan has problems that need fixing/eliminating, and members voted in favor of the Master Plan because there was a variance provision for unusual circumstances. (For instance, there is at least one property that is 100 feet wide that cannot be built upon due to the increase in setbacks in the Master Plan.) Until the Master Plan is changed the proposed language is better by establishing this as criteria to consider. Since not all situations requiring a waiver will meet all five criteria, the current language defeats the intent of the section.
4.2 Criteria for Granting a Variance. A variance may be granted
1. Exceptional or unusual circumstances exist over which the Landowner has no control (for example, topography).
2. The requested variance is not materially detrimental to neighboring properties; or if the requested variance may adversely affect neighbors, the Landowner requesting the variance may offer mitigating actions to help offset any detrimental effect of the requested variance, subject to review by the affected Landowners and the Association Board.
3. The variance requested is the minimum variance to remedy a particular circumstance.
4. No more than one (1) variance process will be allowed per Original Parcel for reducing acreage size below the minimum acreage or that would increase the number of Tracts/Lots beyond that which is established in the Residential Topographical Areas and Density Schedule (Section 3.5).
5. All variances must meet local, county and state requirements.