A Swimming Pool and it's Fence

Good morning all, I was wondering if anyone knew the answer to this question.

We have a resident that wants to install a in-ground pool (Not a problem according to the covenants), the problems lies with a fence rule we have in the Covenants and an Indiana Building Code and the resident is asking for a variance in the Fence Rule because they don't want to spend 5k on a pool cover.

Our Covenants state that we will ONLY allow a fence that is NO taller than 4ft...Indiana law says if you want to have an in-ground pool you must have a fence No Less than (5ft in height) or a locking pool cover($5k) which will hold 400lbs.

So the question is should the board approve the 1ft variance in the fence height? Does the Indiana Law override our Covenants? If we allow the variance should we amend our Bylaws to state only for in-ground pools?

I would think the state law is above the HOA covenants in this situation. I think Swan's way of going about this is a good solution.

The pool must be installed pursuant to Indiana code, but I think most missed the obvious: the pool does not have to be installed.

It is in the Boards discretion on whether to issue a variance for this sitaution and this fence. Covenants can be more restrictive than state or local law, but not less. It is in the owners discretion on whether they want to install the pool with the $5k cover if the variance is not issued.

We have a similar issue with above ground pools. Village code for us requires 5 foot fence with locking gates or 72 inch tall including locking railing/ladder system.

But, we put a 60 inch total height restriction on any above ground pool, and allow only fenced yard to have pools. If the owner does not want a 5 foot fence, or does not want to put locks on their gates, then they can't have a pool.

We have big houses and small lots, so if we did not impose these restrictions it would be a very awful aesthetic.

ChadC - Linda raises a very valid point that it's the owners choice to install the 5k pool cover. As are all the points provided. However, do you want the HOA to be in the position of denying the pool for 1 foot difference in fence height by the length of the fence? Probalby not. Here's some food for thought. The housing market nation wide is taking some very big turns, many states are on the downside of the resale value curve. An inground pool adds resale value which has a postive effect on the resale value of neighboring homes. Even if someone buys a home without one, I guarantee the kids will become friendly with the kids of owners with pools. Pools are good for communities. In healthy associations, covenants evolve and keep up with the times. Permit the variance, keep the 4 foot height for everyone else, and permit variances for anyone that petitions for a pool. If enough owners request the variance, justification for changing the covenants may be in order. I perceive it as a win win for your community. GeraldT1

outside the box thinking uncovers another option...

the owner can carefully read the definitions in the statutes and the covenants, and see if this would work.

State requires a fence 5 foot tall, measured from where? pool level? average/mean ground level? how about the HOA? Where do they require the measurement be based? depending on the answer, the owner may be able to dig a small sloping recess where the fence will sit, about a foot lower than the surrounding landscape. He builds the five foot fence in this lower landscape feature, which satisfies the city's code. However, the fence is only four foot higher than the general yard/ground around it, which satisfies the association's height requirement for aesthetics. For safety, it's 5 foot tall for someone trying to stand there and climb it, but from the street, it only sits 4 foot higher than the rest of the yard.

slope both ways, creating a ditch/moat, perhaps. Or install a gravel channel with septic pipe inside, to drain the water away.

Of course, the other option is the $5000 pool cover...