Fences for Pools, but not Elsewhere

Started by DeeS1 • 15 replies • 3310 views

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DeeS1 (Michigan)
Posts: 223

Posted:

Currently, our community allows in-ground pools. It does not allow fences except as required to surround an in-ground pool (which must be allowed if in-ground pools are permitted).

Can someone clarify: I'm wondering if it is okay for us to allow items situationally like this. If fences surround pools in our community, is it okay to deny a homeowner a same-type fence for any other purpose? To me, isn't that kind of like saying you could have a shed to store lawn equipment, but not have sheds to store kid's toys?

It just seems like if fences are in your community (whatever their purpose might be), they exist and can not be denied.

BrianB (California)
Posts: 2,820

Posted:

yes, it is like that. but then again, many many laws are written like this, with purpose A being legal, and purpose B being illegal.

RobW (California)
Posts: 279

Posted:

Fencing around a pool is a safety issue.

Rob

JanetB2 (Colorado)
Posts: 4,219

Posted:

Many state and local laws require fencing of pools, that is why it is allowed for pools in your documents. The HOA does not have to allow other fencing.

Homeowners can present that they would like to amend this following your state statutes and HOA documents, otherwise ... you purchased knowing this was the rule and must abide by it.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dee,

You would have a very hard time trying to find any local, County or State that DO NOT require fencing around pools. This is a safety issue and your HOA has absolutely no say in the fence issue at all. Fences are required.

This is the Federal law on pool fences but each State will adopt it's own and usually a County permit is issued for a pool only after the plan has included the fence. Sorry but you must allow a fence no matter what the HOA documents state. The HOA may require a certain material for the fence and that is as far as they can go.

"
Federal Law
•The Virginia Graeme Baker Pool and Spa Safety Act lays down certain requirements that the states much include within their own pool safety regulations. Part of the acts' minimum state requirements is that every public and residential pool and spa have an effective and secure fence. The main purpose is to keep small children from entering the pool without supervision. The law allows a natural or man-made barrier instead of a fence so long as it fulfills the same purpose.

DeeS1 (Michigan)
Posts: 223

Posted:

Maybe I should clarify a bit more. I'm coming at it from the opposite side. Yes, I understand and agree with why the fences are required for pools. I would not in a million years offer any argument to the contrary. I was trying to gather thoughts on the acceptability of the contradiction between allowing them for one purpose and not another. How does a fence allowed for a pool not become a precedent for other identical appearance fences. I'm asking because we are about to receive an alteration request from one homeowner with this very argument ... and it doesn't seem totally illogical to me. If, as a community, we are willing to tolerate looking at fences around pools (which we are), how is it different from having them just generally in back yards?

I guess maybe it should be looked at more like "the HOA" does not allow fences period; however, state zoning requirements force us to make exceptions for pools.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dee,

Could you please post the exact wording of the restrictive covenant that says no fencing other than around the pool? With that we will be able to show you why and where the fence is restricted or allowed. Thanks.

DeeS1 (Michigan)
Posts: 223

Posted:

From our recorded documents: Fences and Swimming Pools: No above-ground pools shall be permitted in the Condominium. Any fences shall require the prior written approval of the Developer (as long as the Developer owns at least one (1) Unit and, after the expiration of the Development and Sales Period, the Association, even if a fence is to surround an in-ground swimming pool. Additionally, all fences must comply with all applicable law.

From our architectural control policy document: No fence shall be allowed except invisible/electronic dog fences in rear yard only

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dee,

Do a Google search on swimming pool codes or regulations for your particular County or town. If all else fails, call a large local pool sales company and ask them about fencing codes. They will surely know where to reference you. Also, the building permit department in your City will also have this information as they are the ones who issue pool construction permits.

Your documents will not hold up against installing a fence around a pool if there are city or county codes.

DeeS1 (Michigan)
Posts: 223

Posted:

Thanks Donna. I have the codes for the pool fence requirements. I'm not looking for the documents to hold up AGAINST a fence for a pool. I'm wondering if they would hold up to deny a request for non-pool fencing that matches form and structure of an existing permitted pool fence.

RobW (California)
Posts: 279

Posted:

I understand your point, Dee, but to me it's a very simple issue. Your HOA does not allow fences, except for safety, and specifically, safety enclosures for pools. Allowing one type of fence does not logically lead to allowing other types of fences.

Here's an analogy:

Let's say your HOA allows parking of automobiles, SUVs, pickup trucks and passenger vans on the street, or in common area garages. These are all vehicles, right? A motorhome is a vehicle. A parcel delivery truck is a vehicle. An 18-wheel semi truck is a vehicle. A Greyhound bus is a vehicle. How can the HOA prohibit these types of vehicles from parking in common areas, while allowing other types of vehicles to park there?

See what I mean?

Rob

JanetB2 (Colorado)
Posts: 4,219

Posted:

Dee ... what you stated here:

"I guess maybe it should be looked at more like "the HOA" does not allow fences period; however, state zoning requirements force us to make exceptions for pools."

Is essentially correct except for the fact it is also local zoning requirements not just state laws.

My question is ... do you want to allow other fencing other than pools? If the answer is YES then your group would need to amend your documents and get homeowner's votes as needed. Otherwise to allow is violating your documents and another homeowner could take exception and start a legal battle. Be careful to follow everything correctly or make changes before allowing other fencing.

DeeS1 (Michigan)
Posts: 223

Posted:

Rob, I see what you mean ... I'm hoping it will be enough. Your analogy seems very different to me because SUVs and the like are very different beasts from commercial vehicles. I'm am trying to get my head around something like not allowing sheds to store toys, but allowing the same shed type to store lawn equipment. See what I mean, the structure is the same, but the usage is different.

Janet: No, personally not a big fan of fencing except as required for safety because of our houses are large on small lots. However, based on our last community survey over 40% of our community is known to be agreeable to 4' fencing ... so I think the wording and explanation of these rules is very important right now. Especially since one homeowner is gearing up for the request.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hmmm … per your latest posts:

From our recorded documents: Fences and Swimming Pools: No above-ground pools shall be permitted in the Condominium. Any fences shall require the prior written approval of the Developer (as long as the Developer owns at least one (1) Unit and, after the expiration of the Development and Sales Period, the Association, even if a fence is to surround an in-ground swimming pool. Additionally, all fences must comply with all applicable law.

From our architectural control policy document: No fence shall be allowed except invisible/electronic dog fences in rear yard only.

From what I see you have some variables here …
1. It could be allowed with written approval per “recorded documents”. These documents are legal, recorded, and attached to the properties.
2. The architectural control policy states not allowed except invisible/electronic. My HOA does not have a separate ACC policy, the ACC guidelines are part of the “recorded documents”/CCR’s. Depending on how this policy was put in place (votes from members, board, etc.) and the state statutes could determine how enforceable. In other words if rules were not followed implementing, then this leaves potential loophole.
3. Fences must comply with all applicable law: You need to check state and local fencing ordinances to see exactly what they allow. This is most likely just for determining setbacks, obstructing view at intersections, etc. However, before considering other fences you need to be aware of all applicable laws.

When you talk about sheds, it does not matter what a homeowner places inside their shed. Once a shed is constructed meeting the guidelines then what a homeowner stores inside the building is their own personal business. Someone could easily state they will be storing their lawn mower, but additionally store anything they choose and in essence who cares as the neighborhood is not looking at what is inside. The important factor is that the shed exterior meets the HOA guidelines.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Dee - didn't you ask this question before in a different form?

The fence around the pool is NOT an option - it is the law. So the HOA MUST allow it, working with the law and any other restrictions it applied. Invisible fences for dog training are allowed, too.

All the other fences are optional, more cosmetic in nature. The HOA has decided it does not want that "look" so they follow the CCRs in denying applications for those kind of fences.

If the residents now want the option of yard fences, the CCrs must be amended. The guidelines are in your documents.

BrianB (California)
Posts: 2,820

Posted:

Dee, how about these as analogies, to help you understand that many rules are predicated upon intent, use, etc..

No animals allowed, except assistance animals.
(a dog is a dog, right? yet certain dogs with a different purpose are allowed)

No dogs over 40 pounds allowed.
(why 40 pounds? what is the magical thing that happens between 29 pounds 15 ounces and adding another ounce or two? does the dog magically change somehow?)

all animals must be kept on a leash, except cats.
(why? cats are probably responsible for as much damage to other 'things' as dogs.)

No commercial vehicles allowed.
(why? a dodge truck registered to Bob Smith is allowed, but the same truck registered to Bob Smith Inc is not? A car with a realtor's sign on the door is not allowed, same car without the sign is, and a car with a mary kay decal is on the fence? My truck is a commercial vehicle, because it is a pick up registered in California. All pick up trucks in California are registered commercial vehicles. So, I couldn't park my little chevy if I visited your HOA, but an instate monster truck can be parked?)

If I strike you because I am angry, that's simple assault. But if I strike you because I hate your race or gender, that's a hate crime.

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