What ruling controls?

Started by CourtneyC • 26 replies • 2986 views

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CourtneyC (Ohio)
Posts: 13

Posted:

Our HOA has a ban on above ground pools. We have one homeowner who has one of those blue inflatable pools, which they claim is a "kidde" or "wading" pool (which are allowed). Although it is small enough that it doesn't require a ladder for entry, it is still far larger than what most people would consider to be a "kiddie" pool. And they chlorinate and filter it, and leave it up all summer long, instead of emptying it each day like one would expect with a "kiddie" pool.

The local government has specific measurements for what constitutes a pool. And though we know that our CC&R's can legally be more restrictive, they unfortunately do not specify what qualifies as an above ground pool. They do, however, have a specific provision that states that they can't be modified in any way for several more years.

So, in the absence of a specific definition of an above ground pool within our CC&R's, do we have to legally revert to the local ordinance? Or, can the Board choose to define it? Or, do we have to turn it over to the homeowners for a vote?

BrianB (California)
Posts: 2,820

Posted:

IMO, you have to use the city definitions RIGHT NOW, because that's the only definitions you have.

Eventually, your board can define pools, and depending on your By-laws, either make it official with notice and a simple board vote, or make it official with an owner vote, or you may have to amend your CC&R's to get it official... it all depends on how your rules state that you will do business.

But until you make it official within your HOA, i would have a hard time following some rules you pulled out of thin air, made up as you went along, etc.. Which is where your board is, without a stated definition of a pool.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Well, if it walks like a duck . . .

The fact that this whachamacallit is permanently on the ground and contains water that is treated, and people use it for swimming, etc. I'd say it's a POOL!!

Doesn't anyone on your board have a backbone?

BrianB (California)
Posts: 2,820

Posted:

Ah, but is it permanent?

PaulM (Pennsylvania)
Posts: 1,347

Posted:

CourtneyC: If your docs do allow wading or kiddy pools, then what verbiage is being used in your docs to prevent above-ground pools? How are they described?

CourtneyC (Ohio)
Posts: 13

Posted:

The docs don't mention kiddie/wading pools at all. It was just a verbal understanding with the developer (who lives right in town and is friendly with many homeowners in the subdivision).

The docs simply state, "No above ground pools shall be allowed within the subdivision." These large, inflatable pools didn't exist at the time the docs were written, but his intent was not to have any "long-term" pools up, which includes those that are portable, but large enough that it wouldn't be cost-effective to empty and stow them after each use. Since manufacturers instruct users of kiddie pools to empty and stow them after each use for safety and sanitary reasons, they don't really pose a problem.

CourtneyC (Ohio)
Posts: 13

Posted:

Our board is strong, but we're not stupid. We're not going to get into this without having all of our "ducks" in a row, so to speak. We need more than just personal opinions and basic reasoning, because both sides have that, depending on how you want to look at it. What we need is legal precedents or industry standards, which are irrefutable. That is where I was hoping one of you guys would come in.

SusanW1 (Michigan)
Posts: 5,202

Posted:

It is NOT a kiddie pool.

It is not being taken down after each use.

It is large enough to have to be treated.

People are swimming in it.

What is it, then?

SusanW1 (Michigan)
Posts: 5,202

Posted:

By the way, does it have a fence around it? That's the law around here.

Your Association may be liable if this thing is up , in violation of your rules, and someone gets hurt.

CourtneyC (Ohio)
Posts: 13

Posted:

That's the difficulty we're having. Most people feel that it's not a kiddie pool. But, the owners are claiming it is, since it's smaller than the measurements established in the local ordinance. Is there any OFFICIAL definition of an above ground pool? Or a kiddie pool? Either one would help.

CourtneyC (Ohio)
Posts: 13

Posted:

The law around here states that you have to have a permit and a fence for any pool that falls within their definition. Anything that doesn't meet their criteria is not required to have any safety measures (which is ridiculous).

BrianB (California)
Posts: 2,820

Posted:

" So, in the absence of a specific definition of an above ground pool within our CC&R's, do we have to legally revert to the local ordinance? Or, can the Board choose to define it?"

I would have to say Yes, you must revert to a standard that does exist, if your HOA never established a different one. If you never put your definition of a pool in black and white, you cannot hold people accountable to it.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By BrianB on 03/19/2008 11:59 AM
Ah, but is it permanent?

It doesn't matter if it's "permanent" because many above-ground pools aren't technically "permanent" either. Many above-ground pools are designed to be quasi-portable. In other words, theoretically you can move them with you if you move to another home.

We had this same issue last year and we had a homeowner challenge, and lose, the fight.

They had a blue, self-supporting (it has a sort of "ring" around the top that allows the sides to rise as the water goes into it) pool that could have benefited from stairs/ladder to get into it, but they purposely didn't fill it completely so that the kids could climb over the edge to get in. Thus they claimed it was a "wading" pool.

If it has a filter, even if the homeowner opts not to use it (this homeowner did not use the filter) and cannot be emptied and stored each night, or is not emptied and stored each night, then it is an "above-ground" pool and is disallowed.

We had thought to approach it by defining a top-height for "wading" pools, but our attorney and a retired judge who weighed in on the discussion steered us away from that definition.

I forget why, they might have mentioned something about arbitrary, I simply don't remember.

CourtneyC (Ohio)
Posts: 13

Posted:

MicheleD-

This pool is the same type as the one you dealt with, although theirs would not be tall enough to require a ladder. But, they too, fail to fill it to the top, which makes it all the more accessible and dangerous.

You say you had a homeowner challenge and lose the fight... was this in a court of law?

MicheleD (Kentucky)
Posts: 4,491

Posted:

We never had to get that far.

We had our attorney send them a letter informing them that above-ground pools were against the CC&Rs and that they would need to remove theirs immediately upon receipt or we would file in court to have our documents enforced.

They initially had an attorney write back that they would counter with "selective enforcement," and to attempt to explain that what they had was not an "above-ground pool," to which our attorney simply forwarded the CC&R language back to them along with a draft of the lawsuit we intended to file, and they took the pool down.

They tried to use the exact same issues: no filter (though it comes with one, they did not use it), the height, which was null and void because it is still a pool, that is above ground...., the fact they don't use stairs, which, again, doesn't matter.

We were very careful NOT to say anywhere that *wading pools* or *kiddie pools* are allowed, since, technically they are not either, we simply addressed their pool in the complaint against them and their violation of the CC&Rs.

They took the pool down, probably on advice of their attorney after he reviewed the draft of the complaint we were going to file.

Also, even though our CC&Rs don't "define" certain things (like exactly what a "shed" is or what "above-ground pool" means or "commercial vehicle") the CC&Rs do give the board the ability to make determinations and interpretations, and those are binding. Therefore, our board has "determined" that the reference in the CC&Rs to "above-ground pools" includes those types of pools.

" Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."

CourtneyC (Ohio)
Posts: 13

Posted:

Thank you so much, MicheleD. You have been extremely helpful!

One more thing: You say kiddie/wading pools are technically not allowed either. Do you enforce that? Or, does no one else try to use a true kiddie pool?

MicheleD (Kentucky)
Posts: 4,491

Posted:

We enforce every formal complaint.

We have yet to receive a formal complaint regarding kiddie / wading pools.

Probably because most are gone at the end of the day.

BrianB (California)
Posts: 2,820

Posted:

so courtney, you ban above ground pools, but you allow kiddie pools and wading pools. You have no definition of what a kiddie pool is, or what a wading pool is, as compared to any other pool. Your city has a definition of a pool, which really doesn't help you out, since your covenants allow some types of pools, but not others.

You could claim that kiddie pools and wading pools are not "Pools" by definition, and then use the city's definition of a pool to see if the offending pool in the yard qualifies. You can write up your own definitions, as Michele has suggested, and I like the idea she tossed out there about the filter (whether used or not, if the mfg suggests using one or includes one, it counts). I believe the idea of "dumping" every day is also viable to use to differentiate, as that could get expensive for folks paying their water bills to have to use 500 gallons a day or so. You could also go with a gallonage definition: 25 gallons or more, pool. 24.9 gallons, kiddie pool.

Whatever you decide to do, you must document the matter in black and white, or the next summer, no one will remember what the rules were, a new board will decide differently, etc...

EdieL (Virginia)
Posts: 86

Posted:

Do we sometimes lose sight of simple words. To me a swimming pool
is one that I can swim in. A wadding pool would be where I can sit
or wade around (maybe less that 3' deep)It is hard to try to swim in
less than 3' of water. Does the county or city have a standard on when
fencing is required? ie: size, depth etc.
In ground or above ground, is an in ground garden pond that is 2' deep
the same as a 2'deep in ground pool? Just food for thought.
Edie

CourtneyC (Ohio)
Posts: 13

Posted:

Brian-

Our covenants don't mention allowing any kind of pools. But, "dumping" is what we believe differentiates them. Unlike above ground pools, kiddie/wading pools seem to be acceptable because they aren't up for more than an afternoon. They aren't filtered or chlorinated, so it's really not safe to use the same water twice (it would be like using the same bath water twice-YUCK!).

In the absence of any official standards on the matter, it does look like the Board is going to have to exercise its right to interpret the covenants. We just wanted a more permanent solution, since the interpretation is afforded to the Board, the membership of which changes. We don't want to see the ruling change, or be opened up for debate, with every election.

The one thing that seems to be in our favor is the manufacturers. They market all sizes of these blue inflatable pools specifically as "above ground pools" on their websites. And, the pools marketed as kiddie/wading pools are much smaller and don't have filters.

Also, regardless of type or size, all of these inflatable pools contain an instruction from the manufacturer to "empty and store safely when not in use" (it's written directly on the side of the blue inflatable pools-per a video from Consumer Reports). And the reason for that is, no one wants to install a permanent fence (which is the only truly safe kind) around a temporary pool, which is why the death toll for these inflatable pools is on the rise. They're left filled (and FREQUENTLY UNATTENDED) all summer long, because their size makes it cost-prohibitive to empty and re-fill daily, which means these giant, bright blue things (might as well be neon signs) are out there attracting children from near and far.

CourtneyC (Ohio)
Posts: 13

Posted:

EdieL-

I agree that semantics play a large role here, but they can be turned around to suit the user. YOU may not be able to swim in a shallow pool, but a toddler cannot easily walk, and definitely cannot sit and still be able to breath, in 3' of water.

And the local ordinance is not useful in this matter. They require a pool to be BOTH a certain diameter as well as depth. This odd ruling would allow an incredibly vast, yet fairly shallow (just under 2 feet) body of water to fall outside the definition. It would also allow an incredibly deep, but less large (although just under 12 feet!) body to fall outside the fenceable range as well. This ruling is incredibly short-sighted and, frankly, hazardous in the wrong hands.

CourtneyC (Ohio)
Posts: 13

Posted:

Pardon my typo-I missed the "e" at the end of "breathe."

BrianB (California)
Posts: 2,820

Posted:

I must be missing something Courtney. You say here that wading pools are allowed: "Our HOA has a ban on above ground pools. We have one homeowner who has one of those blue inflatable pools, which they claim is a "kidde" or "wading" pool (which are allowed).", and then you tell me that your rules do not allow ANY pools.

which is it?

My basic point is that you cannot ever expect to enforce fairly something with grey areas, until you properly define it. If you ban pools, ALL pools, then it's pretty black and white. But if you allow some pools, but not others, you better get some definitions in place, black and white, written down, so owners and boards can determine which are banned, and which are not. In the absence of any specifics, you have an impossible to implement rule.

Ban all pools. Or allow All pools. pretty explanatory. But you can't say "All pools are banned except for those small ones" and expect everyone to agree on what a small one is. I think Michele offered you good advice, have your board draw up a definition, perhaps the size, gallons, use or requirement of a filter, height, whatever, and publicize it.

Or, better yet, if your rules truly do ban all above ground pools, then enforce that rule.

CourtneyC (Ohio)
Posts: 13

Posted:

Brian-

You've made my point for me. I said that "above ground" pools are specifically banned, not ALL pools. There is an affirmative allowance for in-ground pools, as long as they're approved, permitted, and properly fenced. And, no, there is no affirmative stipulation that kiddie pools ARE allowed, but it's been the common practice since long before I moved in (last year). And the reasoning behind that has been that kiddie pools and above ground pools are NOT believed to be the same thing.

Nevertheless, here is the crux of the argument: Are kiddie pools the same as above ground pools, or is there a ruling somewhere out there that differentiates between the two? This is what I have been asking for ALL ALONG, an OFFICIAL definition of either.

With black-and-white reasoning, an above ground pool is ANY container of water that rises so much as a centimeter above ground level. If that's the case, then a water-filled thimble or abandoned frisbee qualifies... which you have to admit is ridiculous.

There has to be some reasonable definition or ruling out there, and I'm trying my best to find it. Can you help me or not?

CourtneyC (Ohio)
Posts: 13

Posted:

Brian-

You got me. I went back and re-read my previous post to you and realized that I said our covenants didn't mention allowing any kind of pools. I thought it was understood that we were on the topic of strictly "above ground" pools, so I didn't bother going into the other type (in-ground). Perhaps this is where your confusion arose? My bad.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By CourtneyC on 03/22/2008 9:15 AM
Brian-

You've made my point for me. I said that "above ground" pools are specifically banned, not ALL pools. There is an affirmative allowance for in-ground pools, as long as they're approved, permitted, and properly fenced. And, no, there is no affirmative stipulation that kiddie pools ARE allowed, but it's been the common practice since long before I moved in (last year). And the reasoning behind that has been that kiddie pools and above ground pools are NOT believed to be the same thing.

Nevertheless, here is the crux of the argument: Are kiddie pools the same as above ground pools, or is there a ruling somewhere out there that differentiates between the two? This is what I have been asking for ALL ALONG, an OFFICIAL definition of either.

With black-and-white reasoning, an above ground pool is ANY container of water that rises so much as a centimeter above ground level. If that's the case, then a water-filled thimble or abandoned frisbee qualifies... which you have to admit is ridiculous.

There has to be some reasonable definition or ruling out there, and I'm trying my best to find it. Can you help me or not?

Okay, to help answer:

Your HOA bans above ground pools. Despite that ban, your membership has allowed some above ground pools, as long as they qualify as wading pools. However, no one has actually put that in writing, nor have they defined what a wading pool is, or isn't.

Now, you hope to find some other entity that has defined such things, and use it. I searched Ohio statutes, and didn't readily find anything myself, so I think you are SOL in hoping the state has such a definition.

I believe it is up to your board to define a wading pool versus any other above ground pool, again, perhaps by gallonage, size, depth, etc... or the filter requirement/emptied daily.

Of course, after you have done that, you still have to get past the pesky problem that your rules ban ANY pool, so you will have to amend those to allow wading pools.

CourtneyC (Ohio)
Posts: 13

Posted:

So, Brian, it looks like you've hit the same wall that I did. No statutes, no industry standards, nothing. And, you're right, I was hoping to find some other governing body out there that did "the dirty work" for us, so to speak, so that we could avoid the conflict that will invariably arise with an interpretation or definition derived from the board members. But, it looks like we're going to have to bite the bullet and be the bad guys on this one.

I really appreciate all of your effort on our behalf. It was very kind and generous of you to spend so much time on it only to get the same results.

Thanks again, and have a Happy Easter!

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