dissenting: While I agree with my colleagues that the district court erred in its interpretation of the Declaration of Restrictions, I must depart from their conclusion that the trial court’s judgment for the Falkners should be affirmed because the Colony Woods Homes Association (CWHA) waived its right to require compliance with Section 9 of the Declaration of Restrictions.
From its inception in 1975, CWHA required roofs of wood shingles, wood shakes, slate, or tile throughout the subdivision. Its Architectural Control Committee (ACC) was empowered to expand this list of roofing materials, as well as the list of other approved building materials, as new products came into general usage in home construction in the area. In 1998, the ACC expanded the list to include certain specified roofing materials manufactured by GAF and Celotex.
The Declaration of Restrictions for the subdivision also establishes a procedure in Section 7 for preconstruction approval for any new building or the alteration of an existing building. The majority finds, and I agree, that the 30-day time limit for ACC action found in Section 7 does not control since the Falkners did not comply with the preconstruction approval process.
About a week after the Falkners completed their reroofing project, the ACC Chairman wrote to them as follows:
*364“It has been brought to my attention that you have replaced the roof on your residence and we have no record of you requesting a new roof. This roofing material is not approved as far as we can tell.
“As you know we have request forms that must be filled out whenever you do any outside changes on your residence. This is especially true for new roofs. Since we have no record of what material (manufacturer, color, etc.) was put on the roof, the architectural control committee of the Colony Woods Homes Association will have to deny the use of this material, unless it can be proved that this [is] an approved roofing material (see enclosure).”
The letter goes on to identify the approved composite roofing materials and encloses a request form for the Falkners to complete.
The Falkners completed and submitted the form entitled “Request for Exterior Roofing Material Change” but received no response from the ACC until months later when they were informed through counsel that their roofing materials had been disapproved before submission of the approval request form. Based upon the delay in the response to the Falkners’ application, the majority concludes that the ACC waived its right to limit roofing materials to those it had approved. I respectfully disagree.
The majority asks: “If the materials had already been disapproved before the Falkners had submitted their approval request form, why ask them to submit a form by April 18, 2006?” Slip op. at 16. May I suggest an answer. The Falkners’ roofing material had already been disapproved. The Falkners used an unapproved product. The ACC had the right to expand the list of approved roofing materials as it had in 1998 when it recognized new products by GAF and Celotex. After the project was complete, the Falkners submitted a “Request for Exterior Roofing Material Change.” Their purpose was to expand the list of approved roofing materials to include the materials used on their nonconforming composition roof. No doubt the ACC wanted a deadline for action by the Falkners since their roof violated existing subdivision restrictions. I do not read into this a requirement that the ACC must act promptly on a request to change construction standards by homeowners who have already finished their building project.
When it comes to changing the requirements for roofing materials in the subdivision, once the Falkners requested a change, the majority seems to say that they no longer bore the burden of jus*365tifying that change since the burden shifted to the ACC to take action to prevent the change from automatically occurring. This seems rather odd.
Contrary to the majority, I do not conclude that the ACC’s delay in refusing to expand its list of approved roofing materials is an intentional renunciation of its right to set and maintain standards in the subdivision for roofing materials. The nonconforming roof was already on the Falkners’ house. I do not consider the ACC’s delay as being inconsistent with its right to set and maintain construction standards for the subdivision.
Further, I do not find Lee v. Casualty Co. of America, 90 Conn. 202, 96 A. 952 (1916), to be either applicable or persuasive. The majority cites it for the proposition that justified and reasonable reliance on an implied waiver excuses nonfulfillment of a condition. A 1916 Connecticut case dealing with a liability insurer’s duty to defend claims against its insured simply does not apply. We have a whole body of law in Kansas dealing with a liability insurer’s duty to defend, and these cases are built upon statutes, policy considerations, and special circumstances that are unique to insurance coverage disputes. Those considerations do not apply here.
Further, the Falkners did not rely on an implied waiver. The Falkners operated under the old adage that it is better to ask for forgiveness than permission. They had already reroofed with an unapproved material before asking permission. Unlike in the Lee case, the ACC did not undertake a course of conduct inconsistent with its later position that the roofing material violated construction standards for the subdivision. The reasoning in Lee simply does not apply.
The majority focuses on the statement in the ACC Chairman’s letter in which he stated that the ACC “will have to deny the use of this material, unless it can be proved that this [is] an approved roofing material.” 40 Kan. App. 2d at 360-61. The majority concludes that this “indicates future conduct on [the ACC’s] part.” 40 Kan. App. 2d at 361. In my view, the ACC was not compelled to act. The roofing material the Falkners used was not approved when installed. It violated the construction standards for the subdivision. The Falkners were asking the ACC to retroactively change CWHA’s standards to bring their roof into compliance. The burden *366was on them to convince the ACC that these standards should be changed. I do not conclude that the Falkners’ “Request for Exterior Roofing Material Change” shifted the burden to the ACC to take action to prevent CWHA’s standards from retroactively and automatically being expanded by default.
Finally, after originally concluding that the Falkners cannot rely on Section 7 of the Declaration of Restrictions because they did not submit a preconstruction application, the majority uses Section 7 to impose a 30-day time limit for the ACC to respond to the Falkners’ after-the-fact request to change the list of approved roofing materials. I fail to see the logic of this. The 30-day time limit obviously was designed to protect a homeowner who wants to undertake a building project, makes the appropriate preconstruction application, and then is subjected to unreasonable delays caused by ACC inaction. Those considerations do not apply to the Falkners who used the build-now-ask-permission-later approach.
I respectfully suggest that the concept of waiver does not apply and we should reverse the ruling of the district court.