Retaining Wall Fence Question

Hello- We recently built a home in a HOA community where a fence is required. I spoke to a board member of the HOA and he did say there have been instances where people with a retaining wall have been able to petition the BOD to allow for a waiver of a fence.
I have a 15ft retaining wall in my backyard and do not believe that a fence on top of the wall is necessary because the wall acts as my fence for privacy and protection.

I am hoping someone here has been through something similar and can share some advice on how to phrase the letter so that it is well received?

Thank you,
mike

To clarify, I think John is asking what document requires the fence, not where it needs to be physically located.

Mike's docs say:

8.1.5 Party Walls. Each wall or fence which is placed on the dividing line
between the Lots (the “Party Wall”) is a party wall. The cost of the initial installation,
reasonable maintenance, and subsequent replacement of a Party Wall shall be shared equally by
the Owners of the Lots divided by the Party Wall. However, each Owner is responsible for
repainting the side of any Party Wall facing his Lot. If a Party Wall is destroyed or damaged,
any Owner whose Lot is affected thereby may restore it, and the Owner of the other Lot which is
affected thereby shall contribute equally to the cost of restoration. An Owner who by his
negligent or willful act causes a Party Wall to require repair or replacement shall bear the whole
cost of the necessary repairs or replacement. The right of any Owner to contribution from any
other Owner under this Subsection is appurtenant to each Owner’s Lot and passes to such
Owner’s successors in title. An Owner’s contribution to the initial installation of a Party Wall
shall be made within twelve (12) months from the date of completion of work. All other
contributions for maintenance, restoration, or subsequent replacement shall be made within sixty
(60) days from completion of work. If an Owner fails to make his contribution, the harmed
Owner shall have the right to initiate a legal or equitable action to recover the monies owed.
Neither the Master Association nor the Neighborhood Association shall be party to an action to
collect contributions for Party Walls. END

My initial blush is the docs are not aimed at a 15 foot retaining wall such as Mike has. My 2nd blush is that this wall could be a party wall between Mike and his adjoining neighbor thus Mike and the neighbor could be responsible for maintaining it which could come as a real surprise to his "wall sharing neighbor" who could argue none of it is on my side. If I were Mike or his neighbor, I would want a fence or something on top of this wall to prevent anybody from falling off. Thus my advice to Mike is work with the neighbor to install and be responsible for such versus face any legal action for someone falling off the 15 foot retaining wall. Spend a penny to save a pound. Even if no neighbor or some other entity, I would build a fence above it myself to prevent falls. Right or wrong, my responsibility or not, you know some scumbag lawyer would love to get a hold of someone falling off the wall.

Mike. It is not like you did not know such a hazard (falling off) did not exist.

As I understand it, "Party Walls" are structural walls that separate the two sides of a duplex. Or, in a townhome situation, between every two adjoining units.

Even though walls are being discussed, we have a similar situation with fences. Each of or patio homes has a builder installed 6ft privacy fence around each back yard. The yards are about 20x30ft. When you share a side fence with your neighbor (95% do) any cost to replace or repair that side fence is shared between the adjoining neighbors. The back fence is not shared as each home backs up to woods or a pond, not another house. That section of fence is solely the owners responsibility.

I am one of the few that does not share both sides with a neighbor. I only share one side with a neighbor. My other side is against common property. In my case I am solely responsible for one side and the back.

The docs state "Each Wall OR Fence" ... they do not state that a fence must be build on a wall. Also, note the section is titled "Party Walls" and not titled as "Party Fences". On top of that this section does not note any specific materials or height ... potentially 15' is way more than the HOA average of 6' in height for any wall or fence.