Article Courtesy of The Daily Business Review

By Laura Manning-Hudson

Published September 1, 2019

Disputes over property improvements made by owners of single-family homes in communities governed by homeowner’s associations are somewhat common. In fact, architectural review/control committees are among the most frequently utilized committees in many HOAs, as they are charged with reviewing and approving all types of exterior improvements independently of the board of directors.

However, despite such matters being standard operating procedure in most HOAs, a dispute over the installation of a backyard playset, spa pool, barbecue and other amenities in a Georgia community has escalated into a federal lawsuit alleging violations of the Fair Housing Act due to discriminatory housing practices.

As was chronicled in a recent article in the Gainesville Times newspaper, Martin Moreira and his wife Zulema filed suit against the Pointe West Homeowner’s Association after their plans for a backyard makeover were nixed by the association. They filed the discrimination complaint in federal court in April after the HOA had issued fines and placed a lien against their home in the community located in Oakwood, in northern Georgia.

The dispute arose in the spring 2017 when the Moreiras submitted plans to the HOA to install a play area for their grandchildren as well as a barbecue, spa pool, fireplace, gazebo and other amenities in their backyard. The architectural control committee for the association rejected the project and requested additional information on several items for continued consideration.

The committee continued to reject the project after the supplemental information was submitted, but the complaint alleges that its members then went further than ever before. It states: “In deviation from established practice, ACC members went to the Hall County Building Department and demanded all information regarding Moreira’s application. Hall County Building Department staff later confided with Moreira’s architect, Jack Bailey, that ACC members were looking for something to kill the project.”

The suit also claims: “Similarly situated backyard projects of other homeowners (of different race and national origin) were treated differently and approved because of intentional discrimination based on different race and national origin.

“For example, the ACC required an engineer stamp on-site plans submitted by Moreira and refused to review the application without the stamp. Moreira objected stating that no such stamp requirement exists in the covenants or rules.

“As another example, Moreira has identified seven properties inside the Pointe West subdivision where retaining walls had been built in the same relative location with respect to the property lines that were approved while Moreira’s similar project was not approved. Moreira has also identified three other properties in the subdivision where similar play structures were actually visible from the street and not landscaped as the ACC required of Moreira.

“Moreira’s play ground project will not be visible from the street. His immediate neighbors on either side have agreed that the project can be built in the intended location. Both neighbors are in favor of the project design. The neighbor impacted by the proposed retaining wall on the property line has also expressed his approval.”

The lawsuit continues to allege that a member of the committee became belligerent toward Moreira:

“… On March 16, 2017, Moreira attended an in-person meeting with [ACC member] Robocinski and the president of the Pointe West Homeowner’s Association, Mason Karimzedah. At that meeting, Robocinski, became loud and demonstrated a demeaning and hostile attitude toward Moreira because of his race, national origin and/or religion.

“The tone of the meeting became so toxic that Moreira asked to be excused and left the meeting due to this discriminatory treatment. The next day Mrs. Bruce, who was not even at the meeting, called Moreira ‘presumptuous, narcissistic and deeming [sic].’”

The complaint’s allegations conclude: “Moreira ultimately attended five meetings regarding his project where he supplied drawings showing the retaining wall on the property line. No objections were raised in those meetings to the location of the retaining wall on the property line. Hall County Building Department approved the project with the retaining wall on the property line, and his adjoining neighbors also consented. Moreira spent thousands of dollars for additional drawings and layouts premised on the location of the retaining wall.

“ … The HOA has aggressively opposed Moreira’s plans for improvements to his Pointe West home. They have strictly applied and misapplied the architectural guidelines and HOA rules to prevent Plaintiffs from completing their project, while approving similarly situated projects.”

The suit claims that the Moreiras have spent more than $100,000 to date on the equipment as well as architectural drawings and applications to meet the HOA’s guidelines.

“I invested a great deal of money thinking there would not be any issue to build a playground for my grandchildren. It is sitting in storage at the moment,” Moreira states in the newspaper article, which includes a photo of the equipment still in boxes and shipment wrapping in the couple’s garage.

The article also states: “Moreira and his wife said they have received explicit and hostile phone calls late at night from HOA representatives since the dispute began and plan to introduce phone records in court supporting this claim.”

The Fair Housing Act prohibits discrimination in housing based on protected statuses, such as race, nation of origin and religion. The Moreiras are Hispanic; he was born in Cuba and she in Argentina. If the allegations in their lawsuit and the claim of hostile late-night calls hold up in court, the Pointe West HOA could be forced to pay significant compensatory damages, as well as punitive damages, in addition to legal costs, all of which will be borne by its unit owners.

As with all matters involving homeowner requests seeking approval, associations must always maintain uniformity and consistency in their actions and decisions. They must apply the same standards used for similar requests and avoid any impartial treatment or extra scrutiny. Needless to say, an association’s actions must always be completely free of any nefarious or illegal discriminatory practices.

By focusing solely on whether owners’ proposals meet all the applicable rules and covenants, and consistently applying the same requirements and considerations for all similar requests as equitably as possible, associations can avoid the potential for a dispute that could lead to significant legal and financial liabilities.