This Day in Virginia HOA Law: Fried v. Dunkerton, Augusta County Cir. Ct. (1994)

Fried v. Dunkerton (Wintergreen)

On April 7, 1994, the Judge Thomas H. Wood of the Augusta County Circuit Court decided Fried v. Dunkerton.

In the fall of 1990, Thomas H. Dunkerton and his late wife constructed a detached garage on their lot at Wintergreen at an approximate cost of $60,000.00.  Wintergreen is a development of approximately 11,000 acres, situated mainly in Nelson County – the real estate involved in this case is in Augusta County.

The Plaintiffs, a group of homeowners in the Wintergreen development, alleged the garage was constructed approximately six feet too close to the front property line. The cost to move the garage would equal or exceed the original cost of construction.

The recorded governing documents for Wintergreen do not provide any set back requirements.  But, all improvements must be located in accordance with the directives of the Wintergreen Architectrual Review Board.  The Court held the ARB has ”absolute discretion” in this regard.

Members of the ARB were all employees of the development company for Wintergreen with one employee, Mr. Beale, and the Court found that Mr. Beale “in effect was the Architectural Review Board.”  The Court also found that Mr. Beale “had the authority to authorize the construction of this garage anywhere on defendant’s lot,” and that “There is no code and are no regulations or other documents which would limit his authority to act on behalf of the ARB. ”

The Court ultimately held t”hat Mr. Beale authorized, without limitation, Mr. Dunkerton to relocate his garage closer to the property line in order to save” a stand of trees in his yard.  In a later hearing, the Court awarded Dunkerton $19,123.00 and his court costs.

Most significant quote:

In fact, all improvements must be located in accordance with the directives of the ARB. In fact, the ARB has ”absolute discretion” in this regard.

Grayson W. Beale had the authority to authorize the construction of this garage anywhere on defendant’s lot. There is no code and are no regulations or other documents which would limit his authority to act on behalf of the ARB.

Because every set of recorded governing documents are different, the application of case law to each community association differs.  As always, contact an experienced attorney for advice and counsel.

 

Leave a Reply

Your email address will not be published. Required fields are marked *