Granting Covenant Exceptions

I am on the board of a small HOA consisting of 13 sf lots of 2+ acres. Our covenants clearly do not allow above ground swimming pools. We have a HO who wants to ask the HOA to grant him an exception to the rule and allow him to put up a AG pool, assuming the design is acceptable to the HOA. He does not have the funds to do an IG pool. He will make his case based on the fact that his lot and the pool specifically, can not be seen by anyone else in the HOA, which is true.
Our docs make no mention of exceptions, either if allowed or what the procedure would be to grant one. As a BOD member, I am conflicted about such exceptions, especially the rationale that because his lot is hidden, he should get the exception. It is my firm belief that there must be one set of rules for everyone and if we allow his, we must allow any others who apply within reason. There are only 2 other lots that are not visible by other homeowners while the rest are readily visible by everyone. If someone else in the future is denied an AG pool, are we setting our selves up for problems? I would appreciate any thoughts.

Brian:

You cannot and should not allow an above ground pool when the documents prohibit it. The board is setting yourselves up for setting a precedence for future problems. Unless the board amends the CCR's to reflect allowing above ground pools, the board cannot give permission to the contrary.

Gloria and Gloria, (hmm.. sounds like a hymn)

Thanks for the replies. I pretty much knew we couldnt grant the exception within the rules of the HOA. In the past, every little has been done in our HOA within the rules. The irony here is we have several HOs who pretty much do what they want without regard to the HOA but yet these same ones try and hold everyone else to rules they pull out of whole cloth. These are the HOs who will block any amendment to allow the AG pool. I really feel for this HO who is asking for the AG pool, since to his credit he is coming to the HOA and asking instead of just doing it like some others would.

BrianL - My perspective of your situation is a bit different than others and I'll offer it to the mix. First, let me preface that in order to permit the AB pool, your governing documents should be followed on amending the covenants. However, I believe that your covenants are like most other associations, written for the most part to make broad restrictions because it's expedient/boiler plate/easy for the developer as homes are being constructed. Not written by someone with a visual or creative perspective. It seems your docs. permit IG pools, is that correct? If so, the request for an AB pool isn't way off the mark, given that his lot is unique from the majority of the other 11 lots.

If your association members permitted the AB pool for the 2 lots not visible by other homeowners, they should do so based upon a set of criteria. Therefore, your assoc. would not really be making an exception per say as I see it. Because it's not like your association would be denying another lot with the same set of characteristics where the lots are not visible.

The way I would do it is require the owner that wants the AB pool to put the request in writing with a site-plan, location, set-back from lot lines, a little sun diagram, the closest roadway, that kind of stuff. Then send a letter out to all 13 lot owners and poll them/get input. If none object, go about amending your covenants to permit the AB pool for those lots with a certain set of characteristics.

Your a very small HOA and times change, covenants that seemed reasonable evolve with the times. How old is your HOA, how old are your covenants?

an additional thought here is that the original ban on AG pools may have had reasons other than aesthetics. perhaps there is a risk of flooding or erosion damage down the hills or into neighbors yards, or drainage. that should be explored as well.

As for the execption, one of the battle cries of HOA's is that they preserve property values. Will property value be enhanced by allowing an AG pool? Will that be in keeping with the goals of the HOA? Look at the slipper slope: if you allow one AG pool, you will probably have to allow a dozen. Is that okay? Is that how the area wants to look in 20 years?

when you grant an exemption, you open the door. Once opened, you cannot easily prevent things from getting through.

BrianB,

I understand that you have particular owners that have lots not visible and they may be violators of covenants, certainly no excuse for that. However, you see permitting the AG pool as an exception, I do not share that characterization. I'll probably get challenged on that, certainly not set in my belief. But...not all the lots are equal. If they were, and you permitted one to do it, and another with the same set of characteristics to not do it, than that would be an exception, and actually discrimination. In this case your association could be permitting one lot to do it for a physical reason that the other lots can't claim. So I disagree with you that if you permit one to do it, you will probably have to allow a dozen. You do not have a dozen lots that are not visible from the street.

Pools in general may be, I repeat may be perceived by some to be of value. An AG pool, rather than no pool at all, may net the seller a little more money. In that way the home selling for more can increase everyone's property value because the home that sold can be used as real estate a comp during the buyer and Realtor research process. I think if the Board gets feedback from other owners, yeah or neah to the AG pool for particular lots that are not visible from the street or not visible to other owners, then and only then can the Board be acting on behalf of the association, rather than opinions of the committed few.

"It must be equally enforced or approved" But they already are not doing this! They are allowing another owner (the "screw the HOA" guy) to do as he pleases on his lot without enforcing the rules. You're just talking about selective enforcement of AG pools. Whereas they need to be enforcing ALL of the rules or why bother?

DonnaS - You may have an issue with it, BrianB and BrianL may have an issue with it, why even I have an issue with one resident being treated differently than others. However, not if that owner has a handicap AH HAH!!!, or some other compelling reason to be treated differently. In this case we're talking about lots that are not visible. Now the docs. were written 12 years ago. Were those lots visible then? If so I may temper my belief that a non-creative person wrote the original docs.

Me thinks that if it were me on BrianL's Board I would remove my opinion from the matter and ask my neighbors how they feel. If none have an issue with the AG pool, am I not supposed to act on the behalf of the best interests of the owners?

That's the point, one is being treated differently, now there will be two. The docs must be changed if most of the others are okay with it. If the others are NOT okay, then we are back to square 1 with 2 now being non compliant. 2 out of 13 homes is alot. I say go for an amendment. Ya just can't say "it's okay" to put in the AG pool. Would I vote for an variance? Absolutely!

Let me clarify a few things:
1. The docs are boiler plate developer docs never amended after turnover. The only reason that I can imagine that AG pools were not allowed in the first place is the dubious belief that they will negatively impact property values. There are no drainage or other issues here.
2. We as in the HOA, are not treating some owners differently per se. Are we allowing it to happen? Sure. But, we are 13 homes, with 13 acres of common ground, all protected forest that surrounds half of the community, no other community assets. We have dues to pay the insurance on this ground. Roads are public. We have no manager, no lawyer and no funds to hire one. So essentially its almost the wild wild west, there is little we can do to enforce anything. Most of us abid by by the rules. Our violators are very in your face, intimidating types and only 1 or 2 of us will engage them, everyone else just wants to be left alone at this point. Until the problem children stop them from doing something on their property of course then they start bitching. We have an AC committee but the only time anything has been permanently denied or violations brought, was when our 2 violators were in charge of the board or the AC. And in those cases the rule interpretations were incorrect IMO. So as you can imagine, there is a LOT of bad blood.

Gerald, I understand your point that the more private lots are different and you believe that we could amend the docs to allow AG pools or anything else for that matter, based on that difference. I just respectably disagree with that. We all were given the docs before buying, we all pay the same dues. We should all be held to the same standards, excluding considerations for handicap ramps etc.

I guess I was hoping that there was a way short of amending to let this guy put a pool in for his kids, which in the back of my mind I knew wasnt within the rules but it was worth a shot. We need 2/3 to amend but I know that several HOs are so anti-AG pool its useless.

You all are fun to bounce things off and I respect your opinions even if I might disagree. Thanks

Brian:

Its late and one of our fist wonderfully warm nights here in NC. I am sure you enjoy that pleasure often. I will make my statement short; I live in an HOA, you live in an HOA, we vote for elections, we vote to amend our CCR's, we vote to radified our budget, we vote to sell common area....it takes a majority rule in HOA's either 2/3rds to amend, 80% to purchase or sell land; therefore this makes us a majority rules society!

BrianB - You live in a society, as many civilized do across the world, where an elected few govern because the majority of those that vote elected them, and therefore put them in a position to act. That process is called Majority Rule and a major principle of Democracy. It is also a process termed Representative Democracy. Democracy shares similarity to a Republic, both have heads of state. However Republics can have a Head of State (Prime Minister) and a President with varying roles, and the President in a Republic may have less authority than the Head of state. Some republics permit the appointment of a President and a Prime Minister who have opposing political convictions. In that way, the US is not a true Republic.

In an HOA the principals of representative democracy become more evident do the relative size of the association in comparison to the entire population of the country. You vote for Board members and empower those board members to make decisions on your behalf. Majority has the liberty, unlike many impoverished and dictated, to gather and tell the elected few to vote this way or that. And if those elected don't listen than by God they can be overruled or overthrown. That's why our country was created.

Now mind you, I'm quite ashamed of our country for various reasons. I think when it costs more money to keep illegal citizens than to deport them, there is something severely wrong with how we do things. Land of the free, YES. However, not at the expense of undermining the land itself.

The majority may get beaten physically to voice that belief but tell me when majority has ever been beaten for doing so? NEVER. Because majority chooses to be apathetic and let the minority that believes a certain way step up. Or majority chooses to sit back and be silent, let the minority take the hits. So guess what, when majority watches the fellow citizens chomping the bit, sitting in, marching on Capital Hill in the luxury of majority's homes, know that majority could join them and guess what...RULE. That process is in essence termed the Tyranny of Majority.

If everyone fought against Hitler and his regime without doubt the battle would be bloody. But I state emphatically it would have resulted in Hitler's defeat.