RSFA Board Meeting: Art Jury and Regulations

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This article reports on the four big agenda items concerning the Art Jury and regulations during the RSFA December Board meeting. Other significant items that took place are reported in a companion article. While this topic may appear dry and boring, I assure you it is not, and these topics affect all of us, so I urge you to read on.

Art Jury Appeal

As you know, the Protective Covenant gives a committee of five members the power to accept/deny remodels and construction in Rancho Santa Fe (ie. the Art Jury). If a member feels their application was improperly denied, they can appeal the decision to the RSF Association Board, which is what one member decided to do at this meeting.

The member had submitted plans for an entry gate remodel. The Art Jury objected to several elements as they, in aggregate, made the entrance too formal and/or would make it stand out. There were resubmittals and more rejections. The homeowner decided to build what they wanted anyways. The Association placed a stop work order on the project (well after the most objectionable pieces were built) and ordered the removal of the construction. A mediation session was entered into. Instead of accepting the mediation settlement, the homeowner decided to appeal the Art Jury/Association decision to the Board. 

Source: RSF Association

The homeowner built a pure white painted wooden vehicle gate with stone pilasters. In addition to the two pilasters on the side of the vehicle gate, they built six more pilasters extending out to the road on either side of the driveway between the gate and the road (three per side). The homeowner was appealing to keep these elements, while the Art Jury wanted the extra six pilasters removed and the gate painted a more earth tone color (or at least not stark white).

Source: RSF Association

At the Board meeting, the member was represented by their lawyer, the member did not attend. The lawyer put up a slideshow showing other entry gates with pilasters with each image being flashed for about half a second. It was hard to do any kind of scene analysis given the rapid fire presentation (which was obviously the intent, we aren’t stupid, thank you very much) but I didn’t see anything that showed six extra pilasters extending out to the road from a gate. He also showed a slideshow showing other Rancho white painted vehicular gates. The lawyer then talked about how this constructed entrance would blend in with the formal Rancho Santa Fe look.

Source: RSF Association

Art Juror member Bill Danola then spoke on behalf of the Art Jury stating that in general, the Art Jury tries to minimize structures near the street, opting for an understated look. In addition, he stated that “formal” is not what Rancho Santa Fe is about. The look is “rustic”. Generally, the Art Jury looks for gates that are metal, or if they are wood, they should be stained rather than painted (paint peels over a fairly short amount of time). Finally, white gates stand out, which is, again, not the aesthetic Rancho is striving for.

Source: RSF Association

Association lawyer Bill Budd pointed out that the Protective Covenant gives the Board only two reasons to overturn an Art Jury decision based on paragraph 67 of the Protective Covenant: That the Art Jury ruling would impose an undue hardship on the member or there was bias or prejudice on the part of one or more Art Jurors. In addition, any Board imposed modifications could not lower the standards of attractiveness of the surrounding property or deprecate the neighborhood.

Mike Gallagher, Board president, spoke and summarized his understanding, re-emphasizing “rustic” versus “formal” and also pointing out that the member did not do themselves any favors by going ahead and building without approval. In an odd way of phrasing the resolution, the Board voted 0-7 to overturn the decision (ie. they unanimously upheld the Art Jury decision), meaning that the homeowner must now remove the six pilasters and repaint their wooden entry gate.

Art Jury appeals to the Board are very rare, and few have succeeded. Indeed, there have even been a few court cases (the most infamous one being Dolan-King) where the courts upheld the Art Jury’s power to deny an application.

This was a fairly straightforward call by the Art Jury. It would behoove members to understand what the Art Jury is looking for when doing both new home construction and remodels. You can read the Residential Design Guidelines to get a sense of things, and ask the building department for a consult on your application. In general, it isn’t too complicated. The Art Jury looks for Latin inspired architecture that isn’t ostentatious, formal or that sticks out. I myself have done a street entry remodel and it sailed through the Art Jury in one go (I wrote about it here).

New Art Jurors

Janet McVeigh (Art Jury secretary) and Shaunna Kahn (Art Jury president) are terming off at the end of this month. Even though McVeigh expressed a desire to stay on for another term, Board president Gallagher appointed two new Art Jurors Rob Whittemore and Beth Nelson. 

Regulations

Last month, the building commissioner (Maryam Babaki) presented a new process for creating and adopting new regulations. Apparently one or more Board members didn’t like what they saw and wanted more discussion about this process and thus, this month, the Board voted on whether or not to change their just one month old process to draft new regulations. 

Director Bill Strong talked at length about the long time problems he has had with the Art Jury in that he thinks they are inconsistent and that they unevenly apply existing regulations. In the meeting he said that with regard to the three governing documents (the Protective Covenant, the Regulatory Code and the Residential Design Guidelines), “the Art Jury kept going on [from early 2019 onwards] making exception, exception, exception, exception”. Subsequent to the meeting, I asked Strong to cite examples, and he declined to respond. I also asked several Art Jurors, and they stated categorically that they’ve always followed every black and white regulation and statement to the letter in all three documents, but point out that the Residential Design Guidelines generally do not include “must” or “shall” requirements, but instead offer suggestions in the form of “should” and “prefer”. In other words, the Art Jury scrupulously follows black and white regulations, but makes judgement calls on areas they (and we as members) are given latitude on.

Director Sharon Ruhnau concurred with Strong saying that the Art Jury is inconsistent and that the Board has been “remiss” to not address this. She stated that “We have not actively taken a role in making sure that our #2 goal [from the strategic planning session, which is Art Jury Consistency] is actually achieved”. Sharon also came to Strong’s defense stating that he had sent in suggestions on regulations in a workable format to the building commissioner, but they hadn’t been advanced.

Board president Mike Gallagher pushed back on these narratives somewhat. He stated that any one Board member is only one point of view and in particular, no Board member had been delegated by the Board as a whole to dictate what should go into regulations. In his view, Board members should not get into the bowels of regulations, but instead the Board should ensure that proper processes are followed. Gallagher also pointed out that the Association is currently processing twice the normal volume of building projects and thus the building department is overloaded as it is. Add on top of that, you have COVID-19 related restrictions (only 35% of staff is allowed in the office at one time, and you can’t effectively process 4′ x 3′ blueprints without being in the office) meaning it is a miracle that the building department can keep up at all.

Director Rick Sapp stated that we can’t keep constantly changing processes and pointed out that the current regulation process was just one month old. He likened it to pulling a tree out of the ground to see if the roots are growing. Sapp additionally commented that he had read Strong’s proposed new grading regulation and that it contained a huge number of changes.

Director Greg Gruzdowich wanted to impose another new process onto the Art Jury and get them to make a summary of all guidelines or regulations which aren’t being followed (which, actually, would be a pretty simple report since, as per the Art Jury, each such report would be blank). 

Gallagher stated that he wanted a strong building commissioner who would sift through all inputs and present a final document to the Board for approval. The Board’s only institutional role would be to ensure that correct procedures were followed. In addition, the Board should set priorities and point out possible areas for research, like asking the question whether or not grading is getting excessive, and then having the building department follow up to research and answer such queries.

In the end, the Board held a vote whether or not to keep the one month old process for developing new regulations. Strong and Lemarie voted against this for a 5-2 vote.

I’ve got to say that this isn’t a good look for the Board. By not letting staff do their job and by publicly trying to jiggle their elbows through these kinds of Board votes, it can’t leave staff feeling good about their responsibilities. Nothing is perfect, and you can’t always get your way. It is also corrosive on many levels to charge that the Art Jury is not following regulations. Not only does this open the Association up to lawsuits, it also undermines the legitimacy of the Art Jury in member’s eyes. Board members calling into question the competence of the Art Jury is especially galling considering that all Art Jurors are appointed by the Board president.

Moreover, this is all beside the point. The Protective Covenant lays out how the Art Jury functions and what its powers are. It does not provide exceptions on that power in the case that a Board member thinks they aren’t making correct decisions. 

Trying to “fix” Art Jury consistency is not actually in the Board’s power since the Art Jury is independent, as per the Protective Covenant. Moreover it isn’t even possible, nor maybe even desirable (no one wants to live with 1970’s aesthetics – aesthetic judgments must to some degree change with the times). Unless you want to change the Protective Covenant, the best you can do is to appoint better Art Jurors, and given all these undermining attacks, good luck with that. If the Art Jury keeps getting criticized at these meetings, the least the Board could do is to invite the Art Jury to defend themselves. At the very least, some Board members might learn something from this.

One last bit. In researching this topic, I came across a very modern, very large house that was built in 2008. Based on operative guidelines, this should have been denied back then by the Art Jury. Oh wait, it was. The then Board overruled the Art Jury and allowed construction to proceed. So, as you look around and see things that make you wonder, please don’t always assume it was the Art Jury’s fault.

Solar Panel Regulation

And then the meeting went downhill from there.

As you may recall, the board was in a rush to promogulate a new solar panel regulation as 2020 started so that members could be informed that CA law now mandated that solar panels be installed on new houses. This explanation for the rush never made sense to me since you don’t need an HOA regulation to inform members of CA law – builders and architects are well aware of evolving building codes. At any rate, the original proposed regulation had a lot of problems. In the end, the board voted in a re-worked solar panel regulation in July on a 5-2 vote. In September, the building commissioner put forth another extensive revision for the now in effect solar regulation mostly based on Board comments. In the September meeting, the Board couldn’t get a single Board member to even table a motion to vote on it. 

Which brings us to this latest meeting. Another revision to the solar panel regulation and another flaming wreckage of a vote. The board voted 2-4-1 against the revision (only Gallagher and Sapp voting for it). At this point I should point out that we members have been subject to a flawed solar regulation since July, and the Board can’t vote in something, anything, to fix problems? With two different attempts? 

I fortunately or unfortunately wasn’t able to attend this part of the Board meeting (since the meeting started late, again, so it ended quite late), so I can’t give more direct comments. 

I’ll leave it at that. Read the companion article to learn what else occurred at the meeting. It too is interesting.