ARC Error

I believe our ARC made an error in approving a fence installation. The way we work, a homeowner completes the ARF (Architectural Review Form), with drawings, specs., etc, and gives this form to a Board member. The Board member makes a copy, attaches the ARC's checklist for them to complete as they review(Architectural Review Committee), and convenes the ARC for review. When the review is finished and signed off on, the full ARF is then returned to the Board member who gives it back homeowner with the review decision. A copy is also kept for our records.

In a nutshell, the ARC approved a fence installation that looked fine on paper but does not look fine being constructed. The adjoining neighbor got a hold of me to go check it out, so the VP and I did, and did have our concerns, that the fence was angling more into the front yard then the drawings suggested, making it a front-yard fence, which cannot be anything larger than a 30" decorative fence. This is a 48" picket fence, which is fine for a backyard fence. It also happens, that the neighbor's, who brought this to our attention, own fence, while starting at their backyard, descends several feet down into the fence-building neighbors front yard. These are two very oddball lots. So, there is in essence, a perfectly legitimate fence in one person's backyard, that is also a perfectly illegitimate fence is another person's front yard. Complicating this is the 45 degree angle from the existing fence to the side of the front porch where the new fence takes off. They angled it forward to decrease the disparity in heights had they tried to go straight across.

When the neighbors called me, and the VP and I examined this, the concrete had been poured, the stakes were in and the homeowner had the approved ARF in her hand. We determined that it was clearly going into her front yard, but not as far down as the neighbor's fence in her front yard, and still clearly creating an enclosure for her backyard, not the front yard; that the angle was problematic, for aesthetic and purposeful reasons (at the low end a child or a dog could get over the fence), and that the extreme set back of the house from the front created a back lot line virtually useless. Because of all the above, we agreed to support the ARC's decision.

The adjacent homeowner's aren't letting it go, and while not appealing the ARC's decision officially, they are calling into question the decision. And I can't blame them. Yet,I also can't see making the homeowner's take out this fence based on this possibly errant, but also possibly innocent decision. If the ARC did not physically go examine the site and just based their decision on the specs and drawings, it seemed fine. Whose to say if they did go to the sight they would have made a different decision, or seen the more three-dimensional space as questionable?

What I do know is this three-member ARC is passive at best and reluctant at worst. But. . . of course we have no other volunteers. I would like the Board to replace them with other members (I know they wouldn't mind), but there are none. In response to the concerned homeowner's query into "interpretation," I did say it is one of the biggest challenges to interpret boiler-plate, ill-written, and vague governing documents, as well as getting committed volunteers to understand and apply these rule and regs. As a result, we often wind up with well-intentioned but ill-informed members in charge. Then I asked them if either of them would be interested in serving?

Sorry for the length of this post. Any thoughts on how the Board should handle this? Thanks so much.

Hi Dorothy:

Tim hit some good points. One issue is if the ARC approved then potentially to remove approval especially after money spent could put the HOA into a position of having liability. Also, when you discuss the irregular shaped lots then there needs to be a potential “reasonableness” attached to those decisions. You should not deny a neighbor a proper backyard fence just because their backyard backs up to another lots front yard. Without physically seeing the situation and only from your descriptions it sounds as if the board made a reasonable business judgment to support the ARC decision.

You might try explaining to the adjacent owners the irregular lot issues and that the ARC has to exercise “reasonable” judgment. Not everything is always black and white, sometimes you can run across certain grey areas which are not fun.

Dorothy

I agree with what Tim said but having been on an ARC, that no matter how tight the rules are, there will be exceptions. You said:

"""""""These are two very oddball lots. So, there is in essence, a perfectly legitimate fence in one person's backyard, that is also a perfectly illegitimate fence is another person's front yard."""""""""

We had strict fencing rules but we still had disagreements. As an example. To start with, understand we allowed backyard fences only.

Our fence rules said a fence could go no further forward then the back edge of the house unless it was to align with an adjacent homes back edge and/or fence. The purpose of this was so the fences between homes lined up. This could also mean the front side of your fence might be further forward on one side of your home then on the other side.

Our ARC Rules called for a site inspection before we would approve. We carried a 100 foot rope and quite often had to stretch the rope along the back(s) of house to see exactly were the lineup point was. Not all agreed with us either.

Exceptions will always exist. Decisions will have to be made and not everyone will like the decisions.

Hope this helps.

Thank you all for your wonderful input. It turns out this situation has consumed pretty much my whole day. It's amazing how easily a 48" wooden, picket fence on both sides of the house, turned into a 6 ft. fence of gradiated heights of 6 - 5 - 4. I simply walked up to the fence builder and said, "You are going to cut this down to a 48" fence right?" His look and accompanying cuss words said, no. I had to knock on the door to inform the homeowner that this was not the fence that was approved, and before any more of it went up, she needed to submit a revised ARF for what she really wanted. I don't know why she did not construct her plans to reflect her vision. Clearly her vision was not a 48" foot fence, yet, that is what she submitted. As for the section descending in the front yard, it really is a judgment call, called in her favor, due to the lot configuration.

We (the Board)decided to have a sit-down with the ARC for a review of responsibilities, showcasing this as a cautionary tale, which hopefully we can schedule before the slew of spring and summer projects.

But first we have to get through my VP's brother putting up an unauthorized storage shed, expecting his brother to keep quiet about it. Which he didn't. He told me, (which we will meet further about tonight) but he is furiously upset, conflicted and thinks he must resign, because he can't choose the association over his brother, and he knows the association has to go after his brother, or the neighbor's on the other side, who we've had problems with due to covenant violations, claim that the enforcement of covenants is selective and comes down to who you know on the Board, will be true. I never understood why he would say that, but now I know.

My proposed solution is to present a proposal to amend the CC&R's to allow certain additional structures in the backyard, according to guidelines. This has been the single biggest complaint about our twenty-year old covenants, and I am tired of fighting it. We've had two proposals for this amendment in the twenty-years, both so ungodly complicated that the votes were divided all over the place, without hope of the majority needed. I've simplified it, which I think will give it a better chance of passing, and reflecting the present nature of the association.

However, if it doesn't, we'll have to go after my VP's brother, he will have to resign, and getting a VP as wonderful as he is will be nigh impossible. So, that's been my day, and it ain't over yet! Thanks everyone for the always needed support!

Dorothy

John,
That was my first thought too, but we are only a three-member Board. So, if the Treasurer and I differ, which I don't anticipate, but it could happen, there would be no way to address the problem. We would, in effect, become a dysfunctional Board. His brother is breathtakingly arrogant and would turn any action into a cause. But while this cause is fomenting, the rest of Association business still must be conducted, with the whole Board. I think, even recusing himself from the family issue, my VP would be extremely uncomfortable serving on a Board that is going after his brother, even though he knows it's something we would have to do (if the proposal doesn't pass). I, on the other hand, have no problem going after the guy, whom I've gotten along with smashingly, along with his wife. What is it about people who think the rules don't apply to them? Not to mention the expectation that his VP brother will not only support this bad behavior, but also step down from something he feels worth doing.

Dorothy

I say let him recuse himself and if only two left to vote then so be it. Typically you will need a Motion and a Second. If no Second, the motion dies. If a Second then a discussion and a vote. One to one vote, the motion does not carry. Two to zero, it carries.

A fellow BOD member once asked me why I Seconded Motions then voted against them. I replied every dog in entitled to his day in court..LOL

John,
Okay, interesting scenario. And in the event of no Second, or the mischievous 1-1 vote, it, in effect, allows for the covenant violation to stand -- meaning the Board supports and endorses covenant violation. Follow that to its logical conclusion. The VP recuses himself from this case. No action is agreed on. The violation is allowed. The VP steps back into action for the next case of an unauthorized shed, or any covenant violation for that matter, the vote is all in favor of enforcement, and action is taken against the homeowner. Does not this create the very preferential treatment a recusal was intended to alleviate? Essentially, the VP's next "voting" status results in a decision that denies a neighbor what his non-voting status favored for his brother, in effect, allowing preferential treatment for his brother.

In my mind, the VP either has to stay on the Board and stand up to his family, should it come to that (if the amendment proposal does not pass), or bow to family pressure and resign. As I said, my first response was recusal too. But upon reflection, I don't see how that works as an effective management practice.

D

Dorothy

Another thought. If he resigns, can the two of you replace him? Check your docs about the BOD filling vacant director positions.

Hi Dorothy:

While on one hand I understand that family comes first there potentially is still the other issue in which we all make of our own free will certain choices. Those choices made by family potentially should not affect our personal families and our personal values. Now because they are related the current board member can excuse themselves from items to avoid any violation of fiduciary duty or family issues.

The family needs to understand they made their choice and the association in turn makes their choice without the family member voting on how to pursue.

LOL … my personal view in many instances where the property potentially has a 6’ privacy fence is that what owners choose to do inside their private backyard and as long as items above the fence line match the surrounding home to extent is their personal business. There reaches a point where an HOA has to draw a line between what potentially is personal homeowner rights vs. what is HOA rights to govern. IMO to great extent the private backyard crosses the line monitoring if items above fence match color scheme.

Janet

Our homes all have identical 6ft privacy fence surrounding our backyards. As we are patio homes some of the fence sides are shared plus our backyeards are not that big. Our attitude has been unless something exceeds the top of the fence then you can pretty well do/put in what you want back there.

We are more a live and let live association. As an example, some people cover their mailboxes with college logo covers. We could say no but the aggravation is not worth it.

John