HOA Denied Our Pool

We are wanting to put an above ground pool, 32' x 16' x 52" and our HOA has denied us. Their denial reason was: "Per covenants, no swimming pool may extend more than 1' above ground level".
The covenants do say that, however, it does list that above ground pools need written approval, here is the paragraph on pools:
"No swimming pool may extend more than one foot above ground level. Subject to the provisions of paragraph 2 of this Article, any swimming pool allowed by this paragraph shall be fenced. In addition to the requirements of paragraph 2 of this Article, before any above-ground swimming pool may be installed on any Lot, the Owner thereof shall first obtain written approval by the Declarant of an appropriate landscaping plan.".

I emailed them back asking why the list above ground pools with written approval of their denial reason was the 1' above ground level because above ground pools will certainly be over 1' tall. They responded "Above ground pools are not allowed per covenants. Only ground.".

How can this be interpreted? My understanding is, it doesn't list that only in ground pools are allowed and it lists that above ground pools are allowed with written approval from the HOA. We have our backyard fenced in, sent our plans and request and we believe the denial reason is unreasonable since an above ground pool will be over 1' tall. Yes it does list that pools can't extend above 1', but why have the clause that above ground pools need written approval then?

Any help would be greatly appreciated! Thanks!

Just because the covenants say a thing doesn't mean that thing is enforceable. Pools are expensive and if you have that type of cash to purchase one then you might consider paying an HOA attorney for a consultation ($100-$200) to realize what your options really are.

Unfortunately, you can't assume that CCRs are well written and proofread. The developer's goal is often to take raw land and sell it is lots as cheaply as possible, and this extends to creating the governing documents. They are often a hodgepodge of cut and paste sections from boilerplate CCRs or other CCRs that the person who creates them has laying around, with little effort given to ensuring internal consistency. In this case I would expect the more restrictive provision to control, so no above ground pools over 1 foot would be allowed.

Even if interpreted to allow above ground pools with ARC approval, that doesn't mean the ARC has to approve any, as long as they are consistent. As Jared suggested, if this is important to you, a legal consultation might be in order.

Alex

That covenant was aimed at not allowing any above ground pool but with the one foot tall restriction, still allow wading pools.

Yes you can have an above ground pool but it must not be taller than one foot. The rule is firm and proper. You just do not like it.

Alex,

Two questions:

1) What are the provisions of Paragraph 2 (referenced in your citation)?

2) Are you still under declarant control?

Well there are several reasons pools are an issue and it's not just sight. What if it broke/sprung a leak? Are you prepared to pay for any damages that may cause? Which the force of water can be pretty strong and could take down a fence or flood inside a house. The added noise is a factor. No one wants to live where your going to have screaming kids running about. I live next door to a pool now and they are adults who own it. It's terrible when they decide to throw a party. I get trash and pool toys in my yard. (If not trespassers).

Pools do NOT add "value" to a home. Most realtors will tell you this. Maybe more attractive to buyers but not more money. If the pool is installed on common area, it could cause liability issues to ALL your neighbors/HOA. In our HOA, you own the house and the lot it sits on. You have exclusive use to the area around your home. So what if there was an accident at your pool by a visitor? Who do they sue you or the HOA? Or do you sue your HOA to collect on their insurance policy?

So yes denial of the pool is NOT because they are stuck up prudes or they hate you. It is in fact reasonable and protective reasons. It sucks you can't have a pool. It would suck more if your pool kills someone...

The board or committee's decision should be based solely on the covenants and not personal opinion on pools in general?

I'm sorry Melissa, but any kind of outside activity can produce noise that can inconvenience neighbors, not just a pool. Besides that, an in ground pool doesn't make less noise than an above one. Also, as I have stated, by backyard is completely fenced in with a 6' privacy fence. If you are in my backyard without my knowledge you are trespassing and it's impossible to be in my neighbors' yard because of the fence. As far as visitors go, if they get hurt we have insurance. Same goes if the pool destroys any kind of property. An in ground pool can destroy property too and a visitor can still get hurt. So these points don't seem valid to me either as to why an above ground pool can't be used, those same problems can occur with an in ground.

Why would a bug care if the pool is in or above ground?

Maybe I’m missing something - but ....apparently this is simply another case of someone not wanting to follow the rules.

Why always looking for angles to do something that you signed up not to do.

I don’t get it - just follow the rules.

It sounds like the OP wants to follow the rules but they are unclear. I think following the rules and defending your property rights are both important. Sadly, many HOA leaders don't accept the notion of property rights.