When is six feet not six feet?

Howdy Everyone,
How about them Ravens!! Okay, enough of that, here's the situation. Regarding backyard fences our covenants state: "The backyard may be enclosed with a privacy fence, hedge or mass planting of shrubs of no more than six (6) feet in height from grade to enclose the back of the house to the end of the lot. All fences must be be approved by the ARC before installation."

Here's today's query from a homeowner, who already have a six foot fence around their property. The property behind them (not part of our neighborhood) is pretty much a junk lot, with two RV's, a boat, you get the picture. The homeowners want to build a retaining wall and move the existing fence atop it, raising the sight line of the fence two feet, to block from their view the dog & trailer belt. She asked if they needed to get an ARC review, since they are not technically erecting an 8-foot fence, but are, through landscaping instead, creating an 8-foot barrier.

I thought this was pretty darn interesting. I did tell her she would need to get a review for any major fence alteration, which this would be, but then I started to wonder if that was correct. Does the above covenant address a six-foot fence creating an eight-foot barrier? I mean, they would still need to get a review under the general covenant requiring architectural review before any construction is commenced on any lot. But before the ARC is convened for review the plans have to be allowable for review in the first place.

Thanks for your input.

In Phoenix, where I live, backyard privacy fences/walls are nearly universal. The city ordinance governing the wall heights say 6 feet from the ground, measured from either side of the wall. In theory, if you build a berm two feet tall then you can build six feet above that. It would be six feet high on one side of the wall, where it is measured from the top of the berm and eight feet high on the other side, where it would be measured from the non-bermed grade. But since it is no more than six feet on one side, it is legal. BTW, this is not common practice; most of us find 6 feet above the natural grade to be just fine, but we do not have much topography to deal with. It's pretty flat in most parts of town.

In many of the older neighborhoods, oleander hedges served the same purpose of a privacy fence. It takes awhile for them to grow in but at maturity can grow 12 to 15 feet tall. Landscaping may provide the same privacy as a fence and be more visually appealing. Just a thought.

Since the home in question is on the perimeter of your development and overlooks an eyesore that your association cannot control, it would not hurt to cut the owner a little slack.

I think that the BOD should consider the 'intent' of the covenant rule you cite. It seems to me that the intent was to ensure consistency while allowing the "6 ft height FROM GRADE". Since the rule specifically mentions both 'fence' and 'plantings,' combining them into an 8 ft structure would imo be a clear violation. Approving this one is asking for trouble down the road.

Hate the no edit...

I will add one cavaet. There could be some consideration for fences along the exterior edge of the development. Their height and type might well be different then "interior" fences.

In one HOA I was a member of (stand alone homes) we only allowed 4ft fences but in the case of property backing up to the outer edge of the HOA property, we did allow 6ft privacy fences along that property line.

Dorothy,

Does it help the quality of your community, no matter how small the overall benefit, if residents don't have a view of the "junk" lot over which your HOA has no control? I would say "yes."

I like that you separate the fence matter in that interior properties are boxed in by HOA-protected neighboring lots. They are protected for non-harmonious property aesthetics. This strip or properties (one in this case) is forced to endure non-harmony by the very covenant that's meant to guarantee harmony.

Good question here. I'd make the exception for the reason it's the ONLY option for the HOA to guarantee that this property isn't subject to aesthetic nuisance - the non-HOA property.

Let's look at what the covenants state: "The backyard may be enclosed with a privacy fence, hedge or mass planting of shrubs of no more than six (6) feet in height from grade to enclose the back of the house to the end of the lot. All fences must be be approved by the ARC before installation."

So the homeowner cannot build a fence or plant hedges or shrubbery that will grow to a height greater than six feet b>from the grade of the property. The covenants list no language regarding changing the grade of a property.

If this homeowner's property slopes downwards towards the junk lot and then they build a six-foot-fence, the effect of such a fence is diminished. If the construction of a retaining wall levels the grade roughly two feet, then that would be well within the confines of the covenants and restrictions, because after all, they covenants do not define grade and presumably there is no universal grade for the neighborhood.

The only thing I could see that could fall within the control of the ARC is the retaining wall itself. Does that require ARC? The C&Rs clearly state fences, hedges, or mass planting of shrubs have limitations and that "fences" require approval. Are fences clearly defined in the C&Rs? Is a wall a fence? From my reading Washington State does have a statute in their Revised Code regarding fences (granted it is in the animals and livestock) and it has definitions. Could those apply to all fences statewide?