Improper Rule Change

My association for five years permitted white vynal fences in addition to wood via the rules. The Covenant only requires post and rail and is silent on materials other than green wire mesh. Two requests for white vynal fences were approved in the five years but were never installed. When the BOD was aware that I wanted to install a white vynal fence, they attempted to change the rules to exclude vynal fences from being permitted.

The change was not effective in my opinion because there was not a quorum at the BOD meeting, and also our Covenant requires all rule changes to be done via resolution, but the BOD did not even vote on the change at the meeting let alone adopt a Resolution. I submitted an A/C request the day after their meeting at which they attempted to change the rule and before I received the official notice of the rule change in the mail.

An appeal hearing was conducted in accordance with the Covenant and the BOD "elected to sustain their previous denial of the vynal fence".

My options are as follows:
1) Initiate litigation for ability to install vynal fence
2) Install fence and let them sue me
3) Install wood fence.

The Board is wrong, in that
1) they did not have quorum at the meeting,
2) the rule was not changed in the requisite method - resolution
3) My application was sent before I received notice of the supposed change

I am not sure if it is worth it to initate ligation and be on the offensive, or simply install the fence and defend my postion if they pursue litigation as they have not in 9 years of the HOA existance and there are many other property owners who are in clear violation of the Covenant and rules.

Any thoughts would be appreciated.

I am not sure we have all the details. Is it truly that the fence is vinyl or are there other factors here? You can say that the BOD is denying your fence because it is of "vinyl construction". However, maybe it's the design or the location of the fence that is not being approved. I can't say the denial and the proposed change to deny vinyl fencing is the only factor here.

Here's the deal with vinyl siding or fencing. Sometimes they add more "value" to the home that others can't afford. If all the homes look alike, which home would you buy? One with the standard wood or one with a vinyl fence? Same with vinyl siding. Vinyl in some situations can add a bit more curb appeal or value to a home. You may all be neighbors but your also competitors when it comes time to put your home up on the market.

I would suggest seeing if anyone else is interested in making sure there is a Vinyl siding or fencing allowance. The more support you get from the other members, the more likely the allowance for such materials will be allowed. Plus find out what the true issues are. It may be something other than just it's vinyl fencing.

So you haven't tried to compromise and paint the fence another color? There seems to be room here for compromise. Yes, that bad word that means I have to give up something so I can get something in return. Sometimes living in a HOA means that. Remember HOA stands for Homeowner's Association. That means your neighbors can impose their opinions on you as well as yours.

Why not try to reconfigure the fence idea and resubmit it. We had a fence that someone wanted to install. However, the original design would have prevented drivers from seeing the stop/yield signs at the corner of the house. Plus, it put the homeowner in jeopardy of being robbed without anyone seeing them. Her fence idea was completely within the rules and with the right materials. It just wasn't functional for the whole community.

I was able to work with her and the fence installer. We reconfigured the fence to start at the normal 6 foot height and taper down to 4 feet by the entrance door. (Our doors are at the side of the homes NOT front). We had to deny her fence the first time around but after reconfiguring it, we were able to get a better fence more functional to her needs and ours.

Did she get the fence she original wanted. No. Did she get a fence? Yes. Just because the first plan doesn't work. Doesn't mean the next won't. Go back to the drawing board and see what other options you have. A white fence presents it's own issues with it showing dirt and need of maintenance faster.

BrianS6:

The 3 options listed, IMHO, are not the way to go initially. You do not state when your official documents were recorded. You do state "...The Covenant only requires post and rail and is silent on materials other than green wire mesh. Two requests for white vynal fences were approved in the five years but were never installed..."

If the covenant states only post and rail (which is wood), where does the 'green vinyl fencing' come in? Has there ever been an official amendment to the original docs on using new fencing materials? A wood fence, these days, is passe', requires maintenance, can attract termites, and is not cost effective.

Documents don't usually state what is not allowed, but do state
WHAT IS ALLOWED, which at present, is post and rail (and green vinyl??). Your efforts need to be centered on learning of other like-minded residents who may want white vinyl fencing installed and to get a signed petition to REQUEST AN AMENDMENT to the documents to include same. If you get an appropriate amount of signatures (Bylaws dictate percentage of residents to change official docs), suggest you request a special meeting to hold a vote.

In these days of new materials coming on the market, it is certainly cost effective to choose vinyl fencing over wood. I believe you have a valid request but you need to proceed in the correct manner.

What a bunch of hooey. No offense, really, but this is exactly the type of thing that gets people's blood boiling over HOAs and BODs.

Never heard of "too much white" or that wood is better than vinyl.

I also have issues with people getting so deep into extremely subjective areas.

The CC&Rs are silent on materials because it's probably wasn't an issue, as long as people did go around putting up green MESH (not necessary vinyl). Ours is specific on what is NOT allowed, and SILENT on what is. So what IS allowed can run the gamut, as long as the finished side is out (if there is a finished side), and the posts are 2 feet in the ground.

At any rate, if two vinyl were approved, and you have copies that prove that, even though they were never put up, the BOD has little to stand on.

A judge would simply rule that they approved those types once, there is no legitimate reason for them to not approve now. So they have shown that the do allow other than wood fences. That goes a long way with judges, previous approvals. That's one reason why we can't allow even kiddie pools. A judge said that by allowing wading pools, we have shown that we WILL approve above-ground pools, but just that we will get picky over the depth. So as a result, we don't even have a resolution anymore that allows for kiddie pools.

I would just put it up and go from there. It's a very nice addition that will add value to your home, white or not.

There's a reason why vinyl is more expensive than wood.

But, keep in mind that vinyl now comes in a variety of colors and tones. If he did one in a color/tone closer to a wood tone, then THAT, IMO, would look really tacky given all the white on his house.

I can personally relate to this topic as a Board member and as a homeowner (with a white vinyl fence.)Our subdivision is a "no fences allowed" community, with one exception--where a fence is required by the county around a pool. There are also "no above ground pools" allowed, so basically...if you want a fence, you have to put in a inground swimming pool. I am not sure if they figured that no one would do that, but our house was the third in the community (of about 250 single family homes) to do so. The first home to put in a pool got quite a lot of flack regarding their fence--because they fenced their entire yard, rather than just the pool area. This was a "gray area," so nothing was done, but it was definately a hot topic.

Knowing that this was a problem with people, we made sure our plans used the house for as much of the fencing as possible. Then, we eliminated any ability to see it from the front. Next, we made a clay mock-up and showed to to our immediate neighbors. On that mock up, we had the typical black wrought iron fence commonly used around residential pools portrayed. Our closest neighbor, and the one who would have the majority of the fence along her property requested "can you do something other than those black metal fences? They look like prison. How about a white one?" Wanting to appease as many people as possible and taking into consideration that into the design, we came up with a very strudy, attractive white vinyl option. Our property had to be raised in order to accomodate the pool, so we had a 3 foot brick retaining wall followed by a 4' planting area and then our 5 ft semi-privacy white vinyl fence. We took care to match the brick to the neighbors' patios, since it was on the outer side of the fenced area--for continuity sake.

Still, neighbors were OUTRAGED at the MONSTROSITY of our "white, vinyl fence." They cited non-existant "regulations" that they THOUGHT should be in the covenants, but were not, that said that you had to have a black iron fence with a pool. They said "all the other pools in the area have black wrought iron." They even submitted pictures of such. Well, turns out they didn't look too closely, because on the arch. application for each of the other pool fences, one is a green iron and the other is a powder grey aluminum alloy fence. This destroyed their "continuity with other properties" argument.

But when we looked at the details for archetechtural review, it states that the addition must be cohesive with the archetecture of THE property (does not state surrounding) and when you look at the back of our house, there is no black anywhere...not even the roof, but the flashing around our white vinyl windows, our gutters and other trim matches perfectly with the white vinyl fence. The only arguable thing is that we have a pool and others do not, so that makes us stand out--but pools are allowed and fences are required for pools...so there the argument rests.

You will find, more and more people are using that "composite" decking in their projects, which will get into a bit of a sticky situation for some HOAs which have material-specific wording. WHen you see the final project, in most cases it looks far superior to its wood counterpart and will maintain that look long after the other wood decks are sorely needing a refinishing. Vinyl fencing should be looked upon with a more open mind for the ease of upkeep (power washer) and consistancy of wear & performance. Do they allow the wood fences to be stained? If so, do they specify the shade, or could someone conceivably stain their white? Then, a direct comparison could be made, where the white vinyl would maintain its appearance and eliminate the possible future problems with forcing a resident to do upkeep.

Are the adjoining properties fenced? I can see there being a need for compromise if you were suggesting on putting a white vinyl fence in the middle of a row of wooden ones. The reason for sticking to all wood is so someone does not have the misfortune (which I happened to have at one property I owned which abutted 5 surrounding properties) where none of the 5 properties agreed on a single type/style/height/material/stain for their fences, leaving me with "quite" the view. In this case, especially with under 1/2 acre lot sizes, it is probably best to cooperate on a general "look" or the subdivision tends to look choppy and the fences look like barracades, not transitions.

Just my $0.02