Fence height conflict city vs HOA

My town's fence ordinance is for fencing of different materials but the height may not exceed 6'. The conflicting HOA rule only allows for a 4' fence made of cedar. After reading the HOA declarations document it suggests that if there is a city ordinance, then it wins. Am i reading this incorrectly? I'm looking to install a 6' fence made of composite material.

From the HOA DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
15.8 City Ordinances Prevail.
None of the covenants, conditions, restrictions or provisions of the Declaration are intended to supersede or prevail over the ordinances of general or specific applicability of the City as they currently exist or as they may be amended from time to time, in which the Development is located, and in the event of any conflict, the applicable ordinances of the City shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration.

If there is a conflict between a city ordinance and the HOA rules/regs/covenants, then the city ordinance wins.

However, what you describe is not a conflict.

The city allows a fence up to 6 feet in height.
The HOA allows a fence up to 4 feet in height.
No conflict, as 4 feet is within the 6 foot limit.

Had the HOA allowed a 7 foot fence, there would be a conflict and the ordinance would set the limit of the fence.

In your case, since there is no conflict, the HOAs fence limit is the one that must be complied with.

Basically, an HOA can have a more restrictive rule/guideline/covenant then the city/County/State. They simply can not have a less restrictive rule (or a conflict would exist).

Think about it. Your the only member who has a 6 foot fence made of composite materials on the block? None of your neighbors or even potential buyers are going to like it. It's not about what the city allows...It's what the HOA restricts to keep in context of their HOA's theme.

The restriction may not be in he covenants, but apparently there is an architectural standard or rule, etc that does limit to 4’ ... probably doesn’t matter in this case.

I agree. This is classic example of city/HOA conflict.

The HOA cannot make up a rule just because they think it's the standard or have been applying 4 feet as the standard in the past, the restriction must be clearly written in the CC&R's, the author needs to copy and paste the CCR's part where it states fences cannot exceed 4 feet and can only be cedar.

It does if the HOA wants to enforce the height restriction. Far as I can see with the information given the owner can challenge the rule of the height and the material. Architectural standards are not restrictions, they are just some volunteers interpretation of what they think the CCR's spell out and those interpretations can be challenged in court. Courts will favor the owner unless that height restriction or material is clearly written.

I ask the author to post the fence part of the CCR's.

Shelia,

I disagree with you.
I do agree with George.


True and false.

True, Architectural guidelines/standards are not restrictions (as in restrictions imposed by covenants).
False, that they are someones interpretation of what the CC&Rs spell out.

The Covenants typically require approval from the HOA for any exterior change.
To provide a standard, HOAs, typically, adopt guidelines for the approving authority to go by and for the membership to see what would and would not likely be approved.

Having worked on a committee that rewrote guidelines, it's not an easy task.

Our guideline adoption process was:

1) Committee proposed
2) Board reviewed and modified as they thought was necessary.
3) Membership was given a copy and invited to provide comment
4) General membership meeting was held to discuss guidelines and comments received.
5) Committee made modifications based on membership input and gave to board.
6) board reviewed for conflicts
7) When needed, legal review was sought.
8) Board made modifications based on legal opinion.
9) Board voted on guidelines
10) guidelines published to the membership

The committee made recommendations based on percent of membership currently in violation (if most everyone is violating a guideline, perhaps the guideline needs to be changed), past precedence, research into new style, materials, etc. and applicable statutes. It took the committee a year to make recommendations. It took another year to go through the process before new guidelines were adopted.

I say Shelia is wrong and you are correct. Been there, done this, and in SC.

You all are just reinforcing what I’m saying, I have no issues with the process or the naming of guidelines calling them standards or whatever. Until we see the wording of the CCRs we don’t have enough information of how the rule was put in place, the reasoning for it, location front or rear etc. If the CCR’s are worded poorly or silent on then height and material then the owner can challenge the rule as open to interpretation.

Your community standards may not be the same as someone else’s standard. Let’s give the author a chance to post his CCR’s, I do wonder how they arrived at 4 feet and cedar, i’ve only seen 6 ft unless the fence was at a certain location of the property.

We don’t have enough information, some other owner could of told the owner that such and such rule is in place but until processes, as Tim clearly laid out, have been followed the rule could be openly contested.

I suggest the author post the rule, their CCR’s, how the rule was put in place by meeting minutes with a vote or membership vote. Consistency of the other homes in the community. Etc.

If people are coming onto this forum for advice let’s start with the whole picture first. As of right now, I have seen nothing that states the process that Tim has mentioned and others have mentioned about the standards and community styles. However given the lack of information it appears the author is trying to find anything to get the fence they want.

My take is that an association's governing documents may have restrictions that are more restrictive than local laws and ordinances but they may not be less restrictive. Local limit: 6', the association may stipulate and enforce less than 6'. But it can't be less restrictive, and an 8' fence would not be allowed because of the local ordinance regardless of the association's desire to allow 8' fences.

Hello everyone.. thanks for all the input. I'll try to provide answers to all the questions asked below...

I think i was hanging my hat on the definition of conflict. As i see it, but perhaps not the legal definition, there are two competing rules. I happen to like one over the other ... conflict :-) I am on the board with 2 other members. The reason for me wanting a larger fence is that i have two large dogs. One will easily jump over a 4' fence. I'm not dead set on composite, cedar would have been fine too. I asked the board for an exception but the mgmt company told the board that the rules did not allow them to make exceptions to the rules so they denied my request. This was confirmed by the HOA attorney. Below is the rule in the HOA Declaration of covenants, conditions, and restrictions.

5.9 Fences.
No fences of any kind, other than board on board fences, as depicted and described on Exhibit C, of a height not in excess of four (4) feet for all Units and constructed of unpainted/unstained natural cedar shall be permitted on any Unit. Owners may install fences on the perimeter of the Development in a height not in excess of six (6) feet the height. Developer may install fences of varying heights in locations selected by the Developer on any Unit.

Some of my neighbors prefer we change the rules so that it allows for 6' fencing but this would require 2/3 out of 277 homeowners to sign the change request.

Walking two large dogs in winter is no fun in the chicagoland area...