Texas SB 1588 and Sight Distance Restrictions

Started by AlanB7 • 12 replies • 823 views

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AlanB7 (Texas)
Posts: 5

Posted:

Texas Senate Bill 1588 enacted 2021 allows a property owner to install a perimeter fence for security, although an HOA can govern the type of fence. Our HOA has sight distance restrictions for driveways and corner intersections (a right triangle with 25' legs) for safety and aesthetics which are now in conflict with this provision in the bill. We're updating our restrictions to specify what type of perimeter fence will be allowed in the front yard but unclear how to handle the sight distance conflict. It would seem we need to waive the sight distance restrictions since the bill states "perimeter" which we construe as the front property line. What is the liability to the HOA for not enforcing sight distances in the restrictions should an accident occur; e.g. child on sidewalk get hit by someone backing out of the driveway, etc.? I can see possibly waiving the restrictions at driveways since the Senate Bill trumps HOA rules but an accident at a corner lot would seem to be a much higher risk. The city has some sight distance restrictions for corner intersections but they are not clearly defined for the lay person. Does the Senate Bill also trump the city-defined sight distance restrictions at corners? How are other HOAs handling this conflict?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Sight distance regulations are a good thing for safety reasons. Do not block a "safe view" such as corner lot fences blocking the drivers view.

SheliaH (Indiana)
Posts: 6,964

Posted:

Regarding liability, you'd have to ask the association attorney about that, and perhaps your association insurance carrier. Anyone can sue for anything, but that doesn't mean the person would win. The insurance company may be able to refer you to an engineer or someone who can take a look at your property and make recommendations so you're in compliance.

Or look up the history of the bill (it should be somewhere on your state legislature website). Someone had to sponsor this bill and if you look at whoever testified in the committee that reviewed it, you may find information on some experts you can consult.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

BillH10 (Texas)
Posts: 1,217

Posted:

Another graphic example of those in Austin who dislike the concept of common interest communities listening to someone with a bone to pick or ax to grind, in this case someone or some group desired to negate the language in declarations of hundreds, if not thousands, of HOAs in this state regarding fences not extending forward of the rearmost front building line of the home.

I am willing to bet not a soul involved in the legislature gave one iota of thought to sight lines. We have an alley on one side of our property. If we built a fence to the front property line, and our neighbor across the alley did the same, anyone exiting the alley would take their life in their hands as they could not see oncoming traffic from either direction, as would the pedestrians, bicyclists, dog walkers, landscapers, etc.

We have not encountered this issue (yet) in our 105 home sub-association. Our master association has 9,800 homes; I will ask the modification committee if this has come up.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By AlanB7 on 08/19/2022 9:55 AM
Texas Senate Bill 1588 enacted 2021 allows a property owner to install a perimeter fence for security, although an HOA can govern the type of fence. Our HOA has sight distance restrictions for driveways and corner intersections (a right triangle with 25' legs) for safety and aesthetics which are now in conflict with this provision in the bill. We're updating our restrictions to specify what type of perimeter fence will be allowed in the front yard but unclear how to handle the sight distance conflict. It would seem we need to waive the sight distance restrictions since the bill states "perimeter" which we construe as the front property line. What is the liability to the HOA for not enforcing sight distances in the restrictions should an accident occur; e.g. child on sidewalk get hit by someone backing out of the driveway, etc.? I can see possibly waiving the restrictions at driveways since the Senate Bill trumps HOA rules but an accident at a corner lot would seem to be a much higher risk. The city has some sight distance restrictions for corner intersections but they are not clearly defined for the lay person. Does the Senate Bill also trump the city-defined sight distance restrictions at corners? How are other HOAs handling this conflict?

I advise consulting first the city land use department and the county land use department (whichever applies), asking:

-- Does the Department regulate sight-distance restrictions for the driveways in our HOA?

-- Home owner Jane Doe want to put up a fence ____. Does the owner have to apply to the city for a permit that ensures the fence does not violate sight-distance restrictions?

Report back here.

Then I'd consider hiring an attorney.

My layperson's opinion is that anything involving safety and that the city or state regulates for safety reasons trumps TPC 202.023.

AlanB7 (Texas)
Posts: 5

Posted:

To add to the conundrum, if the HOA retains sight distance restrictions at driveways, a front perimeter fence would have to follow the hypotenuse of the sight distance triangle and that is not strictly speaking the perimeter of the property, so that section of the fence could theoretically be denied since the bill states “perimeter”. Due to the close proximity of driveways in a cul-de-sac, installing a perimeter fence there would result in a real mess due to overlapping sight distance triangles. On some lots a fence could be nowhere near the front perimeter.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By AlanB7 on 08/19/2022 2:43 PM
To add to the conundrum, if the HOA retains sight distance restrictions at driveways, a front perimeter fence would have to follow the hypotenuse of the sight distance triangle and that is not strictly speaking the perimeter of the property, so that section of the fence could theoretically be denied since the bill states “perimeter”. Due to the close proximity of driveways in a cul-de-sac, installing a perimeter fence there would result in a real mess due to overlapping sight distance triangles. On some lots a fence could be nowhere near the front perimeter.

I think you're missing the forest for the trees. All that matters is what county, city and state statutes say about sight distance requirements.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By AugustinD on 08/19/2022 2:52 PM
]I think you're missing the forest for the trees. All that matters is what county, city and state statutes say about sight distance requirements.

... and if your board decides to invent (sic) its own rules for sight distance requirements, and someone gets hurt, do you think the victim's attorneys have a stronger or weaker case for suing the HOA for millions of dollars?

AlanB7 (Texas)
Posts: 5

Posted:

I don’t find anything that says HOA sight distance restrictions become null and void with the passage of this bill although it is implied through the use of the word perimeter and no stated exception. Seems an HOA needs to at least put in writing the restrictions are waived if they have been enforced to date but will no longer be enforced.

AlanB7 (Texas)
Posts: 5

Posted:

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By AlanB7 on 08/19/2022 3:22 PM
I don’t find anything that says HOA sight distance restrictions become null and void with the passage of this bill although it is implied through the use of the word perimeter and no stated exception.

If this is what you believe, then advise your Board to go ahead and ignore the HOA's sight distance restrictions and approve the perimeter fencing. Also advise the Board to skip checking with what the city, county and state's position is on sight restrictions.

Or is it possible that maybe, just maybe you do think safety is a concern?

AlanB7 (Texas)
Posts: 5

Posted:

Our architectural control committee is tasked with determining acceptable criteria for installing a perimeter fence in the front yard. Our sight distance restrictions for driveways were defined in the DCCRs years ago by the original builder for safety and aesthetics and have been enforced for landscaping since. A restriction on fences within the front setback took care of this problem prior to SB 1588. Of course we researched what the city and county restrictions are for driveways, but they are vague to the point that one needs to consult the city traffic engineer or code enforcement department which we will do. (I note some cities clearly state sight distance requirements for driveways in their municipal code which is helpful.) Even if the city or county has such restrictions it doesn't tell us whether HOA restrictions are enforceable in light of SB 1588 and any implications for waiving those restrictions for fencing. One would have to consult an attorney to be sure unless there is a clear precedence. Consulting an attorney has been suggested in this thread of course but we are a very small HOA and the board will likely shy away from that expense. So I'm still interested to know how other HOAs have addressed sight distance restrictions for driveways in light of SB 1588.

AugustinD
Posts: 1,027

Posted:

If a HOA's governing documents have sight distance restrictions for safety, without any basis in law (and so proper professional analysis pursuant to city, county, state and possibly federal code) whatsoever, as appears to be the case here (or the OP is just unsophisticated when it comes to the regulation of infrastructure), and someone gets hurt anyway, I would hope the HOA got the bejeezus sued out of them.

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