HOAs Pool Policy Conflicts County Regulations

Our HOA has just sent out our most current rules to our community. It includes a pool fence policy where the barrier they are REQUIRING home owners to erect around their temporary pools does NOT meet or exceed county regulations. I have sent them numerous e-mails regarding this and now they are "considering revising" the policy. But there is no indication that they are actually going to revise the policy to meet or exceed county regulations. Currently, it does not meet county regulations. Can an HOA do this? Would this not be considered illegal? What steps can homeowners take to ensure that they do not have to follow a policy that does not meet county regulations? Our voices are falling on deaf ears. Please help! Thanks!

Yes, no rules or guidlelines can conflict or upsurp local, state or national laws.

Tell your Board they must comply with minimum standards set by your municipality.

(P.S. Why doesn't your Board know this? This is Rules 101!)

Paul offers great advice. take it.

I want to answer your questions, however, exactly as stated.

Yes, the HOA can make up rules that conflict with higher authority rules. It happens all the time.
It probably is not illegal. I could be wrong, but there are no laws that forbid one rule making body from being wrong, compared to another. It will likely be ruled as "out of jurisdiction" or "out of compliance".

It is silly, stupid, dumb, even wrong and stubbornly pigheaded, perhaps, but not illegal.

Think of this example: Your HOA could pass a rule that says it is okay to drive 100 mph on any interestate hiway, and that you do not need child restraints for kids under 5. Stupid? Yes. Wrong? yes. Will you get out of a ticket by showing the court these HOA rules? No. But is the rule itself illegal? I doubt it. Just absurd, wrong, and out of the HOA's jurisdiction.

I would like to know what the local municipality requirements are and also what the HOA is setting as its requirements.

"Does not meet or exceed" doesn't really tell us very much.

What type of fencing is the minimum allowed by local and what type is the HOA requiring?

Solid barriers and fences must be at least 48 inches high. Gaps between the fence and ground must be less than 2 inches. And if the barrier is solid, there can not be any protrusions on the outside - which would make it easy to climb. The fence policy they have implemented is a 3 foot solid wood fence with a foot of lattice on the top. There are protrusions on the bottom and at the 35 inch mark - which is why a 4 year old climbed it in less than 20 seconds on her first attempt. And even the lattice openings are too big. I will try and go back to the local zoning department since the Board has now actually implemented in, instead of just attempting to implement it. Last time I contacted them, they just sent me the information on the barriers that meet current county regulations and ones that do not. I would hate to see a homeowner in our community follow the current pool fence rule and then have the county called on them for their fence not meeting the county regulations. If homeowners in our assocation went to an attorney, this would not be the only issue addressed. There are many issues but this is the most important one at the moment with summer around the corner.

"If the fence is insufficient, then the local zoning enforcement officer can and will dish out the fines and/or require the fence and/or pool to be either removed or up to code."

I understand this but who will they fine? The homeowner or the Board? If the homeowner is following the community rules so he can't be fined by the Board - then would the homeowner open themselves up for a fine from the county or will the Board be responsible for the fine? Guarantee that our Board would not take responsibility for it.

Thanks for the help.

Brian is absolutely correct.

The zoning enforcement officer will fine the homeowner and won't give a darn about what HOA "rules" are.

They don't enforce HOA rules, they enforce zoning restrictions and binding elements, etc.

The homeowner is ultimately responsible for being aware of all rules and laws governing his or her property. If the homeowner ONLY checked with the HOA regs, then sorry for her.

Good luck to you.

PS: the zoning board won't "enforce" against paper. In other words, if the HOA only has it as a reg (or an allowance), and there are not fences that reflect those regs, then the zoning board has nothing to "enforce."

It will only move against an actual infraction. It can only enforce against what is there, not what MIGHT be there. So they will not likely go to the board and make them change the regs.

BarbaraR3: There are other considerations here. You state "The fence policy they have implemented is a 3 foot solid wood fence with a foot of lattice on the top. There are protrusions on the bottom and at the 35 inch mark - which is why a 4 year old climbed it in less than 20 seconds on her first attempt."

Since you state the 4 year old already climbed it, it sounds like its already been erected and in place. But, an important question still remains--
does the fence/barrier require a permit from the local municipal office? Has the Board checked? This is how you will get the local officials in on the construction. You do not need to deal with the state, but the locals.

The fine will be levied against the unit owner who has erected anything which is not up to code and local regulations. Not only will they be fined, they will have to dismantle and erect what the local ordinances state. That's why its important for the Board to network with the local officials on requirements when dealing with construction or architectural changes in an HOA.

Barbara,
There is a "Heirarchy" of documents that HOAs must follow. To put it simple-----
All 1) Federal Laws and Regulations, Fcc FHA, ADA, etc
2)State Codes, Statutes and Laws,
3)County Codes and Regulations,
4)City or Municipality laws
5)Restrictive Covenants of the Association,
6)Articles of Inc for the Association,
7)ByLaws of the Association,
8)Rules and Regulations.

If your County has minimum requirements for pool fencing, then they supercede any requirements of the Association. No ifs ands or buts.

Brian,
Thank You for the additional word, which now makes that list pretty dern close to perfect. I believe that every Director, Board member, committee member, property manager and probably others that I forgot, should be required to carry that list in their documents. It is so simple and would save everyone, wasted time in trying to figure out where to go for laws and rulings on HOA issues.