The condominium association (CA) complained that the condominium owner (CO) was in violation of its rules by constructing a balcony that was larger than allowed and which did not have the proper railing. The CO claimed that she did not need the CA's approval for her balcony because the CA had failed to act on her application to build the balcony within the 60-day deadline imposed by the governing documents.
The evidence at the hearing showed that the CO delivered a written proposal to add a balcony to her unit on March 3, 1990 to the CA president. On April 13, 1990, the president responded, saying the application was incomplete. Both these notices were delivered by leaving them in each person's mail slot, which was the usual practice for the CA. On April 29, 1990 during a telephone conversation, the president orally informed the CO that the application was incomplete. The CA bylaws require the submission of a complete and detailed plans for any changes to a unit, and they further state that if the board or its designated committee fails to approve or disapprove such application within 60 days after the plans and specifications have been delivered to it, "approval will not be required and this Article will be deemed to have been fully complied with." On May 16, 1990, the CO gave the CA board a more detailed set of plans, similar to those approved for another unit owner, and showing a balcony 4 feet deep; and on June 6, 1990 the board approved the application on condition that the pickets of the railing extend below the balcony base. The board notified the CO of its approval and conditions on June 8, 1990. However, the CO built a balcony 6 feet deep, with a railing holding pickets that did not extend below the floor. There were no other balconies in the CA similar to the CO's.
The panel held that the CA properly acted within 60 days to notify the CA orally and in writing that her application was incomplete and that it needed additional information. Upon receiving the additional information, the CA acted within 60 days to approve the application with certain conditions. The panel further held that the CO had violated the rules and it ordered her to reduce the depth of her balcony from 6 feet to 4 feet, and to install the proper railing system, within 60 days.