Unapproved alterations to property

I am President of our small homeowners association,just 41 one homes. We are generally a congenial bunch, lots of families, and active elders. My neighbor across the street spent all summer erecting this huge, truly ugly, plastic pool, which I now get to see every day from my office window. Apparently he felt this was not an "exterior alteration" or "additional structure" such as a tool shed,or outbuilding, (which are not allowed), and so did not ask seek ARC approval. And he was one of the three members! As was I. It took me awhile to convince myself that he needed to get approval. The only procedure we have in place is to submit your alteration plans to the ARC and wait for the final decision from the Board. We have no standard form, no checklist, and no record over the last 17-years of how, why, when something was approved or not. We are now in the process of revising these ancient CC&R's to remedy this. My concerns are these: Do we ask him to drain and remove and submit the proper request, with the required documents, which very well may result in non-approval and removal of the pool? Or, do we take a less draconian and dramatic, yet still correctional approach, approve by default, but fine him for non-compliance, and notify the 'hood of the action, and the future action with respect to establishing a consistent and impartial system of record, so we are confronted with these unpleasant situations? At present,we do not have a system of fines either (also in the plan to remedy with the CC&R review) except the 12% late fee for dues, which we could be made to be our basic fine.

It can't be seen from the street. I see it from my second story. They had a garden with big, beautiful sunflowers that they tore out for the pool. Plus, in our CC&R's, whether something can be seen from the street isn't necessarily the issue. Every lot has a 6-foot privacy fence. But most of the homes are two-stories. So, I believe it becomes an issue of what a neighbor might have to look down on. Plus, the main issue is it went up without review so that's where the problem lies for me. What do we do as an association when a homeowner pretty much willfully decides to ignore the review process (or honestly doesn't think what they are doing applies) and construct something anyway, and we find out after the work has been completed. Thank you for replying. I do miss those sunflowers!

Dorothy unless pools either in ground or above ground are specifically mentioned then IMO he probably didn't need ARC approval. IF in the "Definitions" section of your CC&R's "additional structure" is defined as anything constructed rather than the specific no, no's you specified then maybe the argument could be made that he needed ARC approval. But most reasonable people would define structure as a building which the pool clearly is not, as far as external modifications the generally accepted definition I believe would be a modification to the home itself, such as a change of color, roof, siding etc., unless your HOA requires ARC approval for all external modifications i.e. bird bath, play equipment, new plantings, tree trimming etc. Where the HOA might have some say is where the pool is located on the lot and the fencing around the pool.

While I agree that the BOD or ARC needs to decide what is and what isn't going to be allowed going forward unless there is a clear specific violation somewhere I wouldn't attempt to make him remove it. And since your CC&R's do not allow for fines other than for late payment, I wouldn't go that route either or it could cost the HOA in legal fees to litigate this.

The big problem I have from your posts are the facts you laid out, you watched him build it all last summer, and you are the Board president and he's your neighbor. If it truly is a violation why wait until it was completed to raise the objection? Why not as a neighbor or a Board member simply not walk over and ask if he had a permit or why he didn't think it was necessary? I suspect from your post that it's not the pool so much as you consider it an eyesore that you have to look at. You said it yourself: "It took me awhile to convince myself that he needed to get approval."

Mary, that's what I'm saying.

It appears the way the "rules" or whatever have been written, the pool would have been okay. Or at least not in violation.

What the board wants to do now (if I'm reading this right) is to make certain determinations that X means Y.

Prior to NOW, X didn't necessarily MEAN Y, so to then change it, or make a post-incident determination, would mean, in my opinion, that they would have to grandfather the pool.

BUT the minute it needs to come down for repair or to be "replaced" (which it will because they don't last very long), then the HO would NOT be allowed to put it up.

Dorothy,

You said: "The other thing is that 95% of all home have 6 ft. privacy fences. So, really, no one would know what anyone puts in their back yard, be it a tool shed, boat, camper or whatever. So, clearly, these restrictions must have the intent of what can be seen from the second story of the neighbors, rather than what can be seen from the street."

So sorry, but I strongly disagree with this assumption. Where I live the majority of communities and all homes are surrounded by a 6' wall. We have this same restriction in our gov. docs. and the intent is so that none of these items will be seen from the street, meaning they cannot protrude above the wall. I've never heard of restricting certain items from one's back yard because they can be viewed from a neighbor's second story window. Frankly I find this quite ludricrous! I suggest you put the shoe on the other foot and think how you would like it if your neighbor didn't like seeing the 4' high shed in your back yard which you carefully chose because it doesn't protrude above your 6' fence.

Dorothy,

There are several sections of our Architectural guidelines and rules that mention an item that cannot be seen "from view of strets, neightor's property, lakes and golf courses" and "ramdas, gazebos and other similar structures may not be approved if, in the opinion of the A/C, it interferes with the enjoyment of neighboring property." When the restriction says an item cannot be seen from "neighboring property" it's always interpreted to mean that it cannot be seen above the 6' wall. Never have I encountered a situation where it applied to being seen from a second story window or balcony. Can you please post the wording of your restriction that says this?

I'm sorry where was the reference to an office window??? I kept reading second story window, which I do think is silly. Why have a 6' fence then?? Wouldn't airline passangers be able to see what was in someone's yard? I just don't understand.

Sorry, I found the office reference!! Right in the first sentence.

Yikes!! I'm clearly missing something I've said here. No where in our covenants does it mention anything about second story windows, second story viewage, second story anything. All I meant to say is that one of the reasons restrictions are put in place is so things don't become eyesores from not just one point of sight. Our covenants require getting an impact statement from the adjacent homeowners, which naturally would encompass several different vantage points. For example, one neighbor may not be able to see something from their ground level patio, but the neighbor on another side can most definitely see something from just sitting on their deck which is four feet higher, even though the structure in question may be well below the fence line. In fact, what may not be an impact for one neighbor may very well be an impact for another. And our covenants take that into consideration. We have no wording about street view, 6 ft. wall, etc. Our only requirement is that the fence, or hedge be no higher than 6 ft. It could be less or none at all. In fact,in deciding approval of an exterior alteration here's what our covenants say: "The ARC shall have the right to take into consideration the suitability of the proposed structure, the material of which it is to be built, the site upon which it is proposed to be erected, the harmony with other buildings and surroundings, the effect on the outlook of the adjacent or neighboring property and any and all factors which shall effect the desirability or suitability of such proposed structure, and its location on the site, or the improvement or alteration." Broad enough? You bet. "Effect on the outlook of the adjacent or neighboring property?" Not specific at all.

As for the view from the airplane? Not exactly the adjacent or neighboring property now is it?

As for the office, our CC&R's prohibit commercial businesses out of the home but not home offices.

Yes, a structure can be can be attached to the ground, as in a flag pole, a basketball court, a playset, a stand alone satellite dish. Or it could be 6 ft tall 800 pound replica of Bottecelli's Venus in a Clamshell in all her glory, afixed to nothing, that would cause Mr. & Mrs.Jones a heartattack, and their red-blooded 10-year twin boys just endless fantasies, as they wear out their Levelors from their second-story window. You know all the interesting stuff happens in the gray areas!

Dorothy

Whew, where's the guy in Pennsylvania with the Scotch?

Peter,
Oh my gosh that is great! That is so helpful and clear. I am going to use that tomorrow at our meeting. Thank you so much. I'm all still down with the Venus babe though!

Dorothy

This may not solve your pool problem, but our county states:
Accessory structures or out buildings are also referred to as appurtenant structures. An accessory structure is a structure which is on the same parcel of property as a principal structure and the use of which is incidental to the use of the principal structure. For example a residential structure may have a detached garage or storage shed for garden tools as accessory structures. Other examples of accessory structures include gazebos, picnic pavilions, boathouses, small pole barns, storage sheds, and similar buildings.

http://definitions.uslegal.com/s/structure/
Defines a structure as:
Structure in the context of construction or housing law generally refers to a a building, bridge, framework, or other object that has been put together from different parts. Precise definitions will vary by governing laws.

The following is an example of a state law defining structures and buildings:

Unless it is apparent from the context that another meaning is intended, the word "building" shall be deemed to include in its meaning the word "structure" and the words "building" and "structure" shall have the following meaning: Any construction, the arrangement of which may affect the health, safety or general welfare of man or animals.

The following is a further example of a local code defining structures:

“Structure” means buildings, steel tanks, steel vessels, pipes, tubes, fabricated sections, metal or wood frames, bulldozers and cranes carried on floats or other objects exceeding eight (8) feet in width and/or thirteen feet six inches (13’ 6") in height when loaded upon the vehicle used in the moving.

As you can see terms mean different things to different professions and how they are used. We attempt to use good old common sense

http://www.dos.state.ny.us/code/pools.htm
New York state says a swimming pool is:

The term “Swimming Pool” means any structure, basin, chamber or tank which is intended for swimming, diving, recreational bathing or wading and which contains, is designed to contain, or is capable of containing water more than 24 inches (610 mm) deep at any point. This includes in-ground, above-ground and on-ground pools; indoor pools; hot tubs; spas; and fixed-in-place wading pools.

Good luck

Peter,

Ah, and so we have the problem of language. Where are the good ole days when we could just grunt, club someone and sleep it off in our cave -- now a cave is a structure!

I've found everything regarding the word structure, in some form, relates to it as a building, whether an appurtenant as well. The possible thing I found in one CC&R is the term "Fixtures -- non-structural outdoor additions." I will see what my committee thinks of that. I think a pool would fall under that, as it just doesn't seem to fall under the apparently common usage of the word structure. As always, we have to get the wording right before the document can mean anything. Look at the Constitution! Thanks for your help.

Dorothy

Robert,
Yes, but not your boat, your motor home, your trailer, your jet skiis or the African Queen.

I just had my meeting with my GDRC, and we were able to come up with our first ever Architectural Review Form, using the definitions structure as building, and non-structural fixtures for everything else. For the pool guy and all the other "honorable" CC&R titilators we decided we would deal with them one-on-one, AFTER we get the CC&R revisions approved, passed and recorded. We need their vote after all!

I'm grateful for this wild and wacky site. Why, I'm downright giddy with accomplishment with what I've learned and been able to apply so far.

Dorothy