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Subject: Fence Issue
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AngelaL
(Maryland)

Posts:3


08/18/2006 8:04 PM  
I just got on my board and am in disagreement with the other members. I'd like opinions on the below clause. The fences in question are for a pool fences. The other members feel that the only type of fence can be white (not just white PVC). They also feel that they can restrict pool fences to be just around the pool (not along the property line). The homeowner has installed a black aluminum fence and another homeowner wants to install a white PVC picket pool fence around their entire rear property. Also, the architetural application has a sentence that says fences should enclose the rear yard. This sentence was left off of the latest form.

"Except as hereinafter provided, no fencing shall be permitted except for white PVC post and rail fencing - open pasture type- with 3 or 4 rails. All fences, walls or enclosures, of whatsoever kind, and the location thereof upon a Lot must be approved by the Covenant Committee. Any fnece or wall built on the Property shall be maintained in good condition and repair in a manner not detracting from the value or appearance of the surrounding property. No chain link fences will be permitted on any Lot; provided, however, that Declarant, its agents or employees, or a Builder may use a chain link fence for temporary storage of building materials and supplies during the construction of improvements on the Property; and provided further, if a swimming pool is permitted by the Covenant Committee, any fencing required by County of State law must still be approved as to type and location by the Covenant Committee."
Any opinions would be appreciated
RogerB
(Colorado)

Posts:5067


08/19/2006 7:52 AM  
Angela, I think the emphasis should be on: "if a swimming pool is permitted by the Covenant Committee, any fencing required by County of State law must still be approved as to type and location by the Covenant Committee."

What is required by the County or State? Does "open pasture type- with 3 or 4 rails" violate statutes? If not, it must be used. The Board needs to investigate statute requirements and then make a decision what to do. If statutes require a different type fence the Board can establish rules regarding swimming pool fencing or amend the Declaration. If the Declaration is amended, include everything desired regarding pool fencing. Did the homeowner who installed a black aluminum fence get approval? If so, perhaps a previous Board already established a rule of pool fencing.

Whether a pool fence should surround only the pool or can be placed at the perimeter of a backyard can also be addressed. The distance from the pool to the perimeter of the yard is a factor. If it is only a few feet the answer could be different than if it is over 50 feet. A scaled plat showing the yard and the location of the pool would be useful when making this decision.


AngelaL
(Maryland)

Posts:3


08/19/2006 8:18 AM  
Thanks for responding. A little more background....it takes 90% of the homeowners to get a change to the covenants. We've tried for 3 yrs and just can't get participation (there are 78 homes). That will never happen. So now we are at interpretation of the clause.

No, the homeowner did not get approval for the black fence and the previous board issued a violation (which my board now has to deal with). Personally, I'm not sure the previous president had the authority to issue the violation (my board had been voted in 3 days before she sent it) but that's another issue. Split rail fences do not meet county code for pools. You can add "chicken wire" to the split rail and supposedly it meets code but that's ugly. We live in Estate Homes and I don't think this meets with the "architectural aesthetics" of the community. 2 homeowners however had installed just that. That's the other problem what is the "archtecural aesthetcs" of the neighborhood? How do you define that?

Previous boards have approved white aluminum pool fences (that surround just the pool). There has only been 1 homeowner to request enclosing their entire rear yard (with a white picket PVC fence) and they were denied. We also have septic systems so that factors in as well. When the previous board was asked how far off of the property line the homeowner had to come to be able to put the fence around the majority of their property the board could not give them an answer. Not that this should matter but they are 1 acre properties and with this homeowner the majority of their yard is in the back.

I am having a problem with the board arbitrarily making up rules (like how far off a property line a fence can go and it's not a property fence or designating between a property fence and not when the covenants don't mention a disctinction between property fences at all). I don't feel the board has the authority to make up rules. This has gotten very complicated and is 2 issues rolled into the one umbrella of fences.

I appreciate the feedback.
RogerB
(Colorado)

Posts:5067


08/19/2006 9:48 AM  
Angela, check your Declaration and By-laws. The Board usually does have the authority to establish Rules and Regulations. If they don't then it can usually be done by a majority of those voting at a members meeting. Based on your County code I would establish Rules and get the approval at a members meeting because rules need the support of the homeowners.

What state? In Colorado, statutes allow 2/3 to amend or if necessary the HOA can go to court and amend with 1/3 (think that 33% is correct). If you can amend than definitely cut that 90% percentage to 67% or over 50%.
JanM
(Texas)

Posts:142


08/19/2006 2:34 PM  
Fences around pools mostly are chain link or privacy fence due to liability issues, and must have a gate. This is to prevent children easy access and falling into the pool and drowning. You may want to contact your local health dept also. They may have guidelines for safety.
JulieS
(Georgia)

Posts:412


08/19/2006 6:52 PM  
Our HOA has a document titled 'design standards' which is probably the same as 'Rules & Regulations'. In this document, the type of fencing and placement of is described in detail and can be changed at any time by the board of directors.

The declaration statement as I read it addresses property fences specifically and when it comes to pools, it is left to whatever the county or state code is, which is usually pretty specific for safety reasons. A split rail fence is not going to keep a child from getting into the pool and possibly drowning. Fences around pools typically need to be of a specific height. I would create your design standards addressing both types of fencing, property and pool.
AngelaL
(Maryland)

Posts:3


08/26/2006 6:46 AM  
thanks all for you input. My problem is that the rest of the board is trying to say that a pool fence can't go on the property line and my argument is that there is nothing in the covenants that restrict that. A pool fence (county approved) CAN go around the entire rear yard. The boards argument is let's say I put up a white picket fence around my entire back yard and then my next door neighbor wants to put up a split rail regular fence around his back yard it won't look good where the 2 fences join. I disagree and think this is America where there should be some individulity. Especially when the covenants don't prohibit it. So far, I've got a tough battle to convince the rest of the board to see my side of thing. The one homeowner with the black fence did a petition and got over 58% of the community to sign. To me, that says the community doesn't want the restrictions the board is trying to place and we the board need to listen to the community. Thanks for the input!
RogerB
(Colorado)

Posts:5067


08/26/2006 7:40 AM  
Angela, IMO on a one acre lot I would not consider a perimeter fence to be a pool fence, unless you ESTATE house covers several 10,000's of square feet

Also, getting 58% to sign a petition does not override the restriction in your Declaration. From a practical viewpoint I guess it depends on whether your Board wants to enforce the Covenants or risk personal liability from a potential law suit. Since you feel amending the Declaration is not possible it appears to me you are stuck.
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