defining an "aboveground" pool

One homeowner recently put in an inground pool. It was a very difficult process since this homeowner did not want to respond to the Board requests for documentation showing how/if the installation would impact the surrounding properties -- water flow issues were our major concern because of significant flooding on adjacent lots -- resulting in legal expenses for the HOA. We always told him that he would get the pool, he just needed to fufill the requirements for submission of plans,etc. (Sadly, one neighbor moved out because of the conflict.)

Anyway, he is now incensed that another homeowner -- who happens to be a Board member -- has a pool on his deck. It's a small pool -- holds 350 gallons -- but does have a filtering system The angry homeowner, who felt we made his life difficult over the pool installation, insists that this constitutes an "aboveground pool" which is not allowed in the Covenants. This pool is on the deck, not on the lot. The relevant Covenant states "no aboveground or other type of pool shall be permitted on any Lot; provided, however, that the foregoing shall not apply to children's portable pools which are stored in a non-visible areawhen not in use."

Any thoughts would be appreciated!

We have had ongoing problems with drainage on our lots, with lots of pooling water in yards, including in the yards adjacent to the inground pool owner's property. Because our "soil" is entirely compacted clay, rock and construction debris, there is limited ability for the soil to absorb excess runoff, and changes in topography in one lot definitely affects flooding of others. There is no way that installing a pool, a cement structure put into a 10 foot deep excavation, would not impact these factors. We requested, and finally got,a written report from a qualified engineer regarding the impact of the pool construction on the drainage from the pool owners' lot onto adjacent lots, during installation and when finished. It turned out that in fact the owner needed to install several underground drainage pipes to direct water flow around the pool and away from affected properties. This was not a frivolous request.

That said, the so-called above ground pool is a children's portable pool that is 30 inches high and 10 ft. in diameter. It is completely made out of soft vinyl and is put up at the beginning of the summer and removed by Labor Day. This pool sits on a patio and neither adjacent neighbor has ever complained about it's presence. No adults swim in the pool since it is so small.

A 30"diameter x 10"tall container will hold 489.5 gallons which would weigh 4,080# with a concentrated floor load of 52.08#/square foot - the patio upon which it was placed will crack, settle, and eventually split from the excessive load.

Huh...I would read this to mean NO pool, aboveground or other type (inground). Interesting interpretations all around!

I would think that the covenant would be limiting only pools of a permanent nature... I would hardly consider this portable pool to be subject to that covenant...

What is the definition of a pool anyway?

I don't know what's so hard to understand. An inground pool is just that -- in the ground. An above ground pool is just that -- above the ground. This particular above ground pool even has a filtering system so it cannot be construed to be like a kiddie pool that is filled with water each day, used then emptied. Joan posted the applicable covenant article which says: "no aboveground or other type of pool shall be permitted on any Lot; provided, however, that the foregoing shall not apply to children's portable pools which are stored in a non-visible areawhen not in use." IMO, "other type of pool" means an inground pool; therefore what the covenant is really saying that type of pool is allowed. The individual whose above ground pool was approved was done so in violation of the CCRs. To approve this above ground pool would be a double whammy. If this covenant is not going to be enforced the BOD should ask for a member vote to remove it from the CCRs; otherwise they're opening themselves up to a potential lawsuit for violating the CCRs.

In another part of the Covenants it states: "Only one (1) in ground swimming pool may be constructed on each Lot provided approval is first obtained under this Article II." But you are so right -- the language is really confusing!

I stand corrected!

(copy and paste) <<>>

30 x 60 x 60 x 3.1415 / 231 = 1,468.7 gallons (x 8.334) = 12,240# total weight

However, the #/square ft is based on the height of water column only, in this case 2.5'
(x 62.5 per cu ft) which equals a static load of 156.25 lbs per sq ft

I JUST LOVE TO NIT_PICK

Wow -- Mary -- I wish I'd had your eagle eye on this language before! Because the one covenant states so clearly that "Only one (1) in ground swimming pool may be constructed on each Lot provided approval is first obtained under this Article II." we did allow the one inground pool, although we really didn't want to! Our lots are not large and in many instances, including this one, the lots are contiguous on many sides, so this pool had impact on at least three other properties. Our lawyer said we would not be able to fight it -- as did many people on this forum -- although we could requre compliance with our requirements of proof of lack of negative impact on the topography, etc, as well as asking for landscaping to reduce the view from another neigbor's home who really didn't want the pool there. (Those are the neighbors who ended up moving over the whole thing.) I can't believe I didn't notice that not-so-subtle conflict in the wording...

So, as you suggest, I guess we need to get on with things, and reword our covenants. Thanks!

Joan,

Sorry I meant to include this provision of the declaration which you posted previously: "The relevant Covenant states "no aboveground or other type of pool shall be permitted on any Lot; provided, however, that the foregoing shall not apply to children's portable pools which are stored in a non-visible areawhen not in use."

Since it says "or other type of pool", IMO, this is contradictory to the provision you just posted.

---- "or other type of pool" ----

Probably the word 'other' should have been 'similar'

The 'only 1 pool per lot' provision is probably meant to ban an inground AND a kiddie pool on the same lot.

In other words you need only change ONE WORD to make your CCRs unambiguous

I genuflect to everything KirkW just said. . . .

Dee,

Frankly, I don't know how you can get around "NO"; unless you are like Bill Clinton and have different meanings for common words!

FYI -- personally, I hate the things, but our community is showing a growing interest in them. I don't think we could get a bylaw ammendment passed due to quarum, but we could change the ACC rules if we can do it without contradicting the bylaws.

I'm not trying to get around the word "no,: but I was hoping to get around the definition of an "above ground pool." I'm searching -- with limited success -- for very specific definitions what makes something an above-ground pool vs something else.

For example, hot tubs hold recreational water, but are not considered pools. If I could author the ACC rule to "further quality" the definition of above ground pool by saying "an above-ground pool is defined as ...." something semi-permanant or year round or identify the certain construction materials or size, etc. and then say other things are considered "portable pools" or "splash pools" or "recreations water structures", etc.

I have only found one municipal ordinance elsewhere that makes a specific destinction between "above-ground" and "portable." Even if I found one, I don't know if it would hold up, but I'm just loooking for away to allow these darn things without allowing the typical above-ground ones.

This by they way OOPS This by the way

Dee you should ask your local zoning board, I'll bet they have a definition of an above ground pool including all of the fencing / zoning requirements including chemicals and drainage. In the mean time this is one definition I came across. In nearly all references I've found 24 inches seems to be the magic number between wading pool and swimming pool.

Swimming Pool - Any structure intended for swimming or recreational bathing that contains water over 24 inches (610mm) deep, regardless of the pools surface area and regardless of whether the pool has a water circulation system. This includes in-ground, above-ground and on-ground swimming pools, hot tubs and spas.

Yes, we started down the size road too and found it too difficult. If we proceed, we would likely use material and duration as our guidelines. PVC or vinal -- no metal parts (these are how the portable ones were defined in the one regulartion I saw), Memorial-to-Labor day (thereby also making it hard to have a standard above ground one), and not allowing above grounds that require fencing (which means they will have to be <24" or higher than 48" in our township). Those three items (material, timing, and fencing)would sort of self restrict the type of pools allowed above ground.

Still not sure if it is worth the effort and I do feel it is playing a little lose with the rules. We did a community survey with a 65% response rate and found that roughly 30% of the respondants wanted to allow seasonal above-grounds and 20% wanted regular above grounds to be allowed, so I think there might be enough interest to keep looking into it.

Changing the actual bylaws in our community it too difficult because we have several out-of-state owners and banks that never vote or proxy so we can't get the 66 2/3%

By the way, I just re-read your stats.

You had a 65% response rate. Of THOSE only 30% want above-ground pools.

That's an even smaller percentage of residents who want the pools than I thought when I first responded.

Thanks to all for the constructive, useful comments based on your personal experience and insight.

Mary: You need to read more carefully. I am NOT one of those who would want an above ground pool. I am, however, one of those board members that at least listens when multiple people in a community have a reasonable inquiry or request, regardless of my personal perspective. I AM putting so much time into "investigating" the issue because 50% of the H/Os who live in my community who are willing to offer an opinion did express an interest in amending the rules to allow for some type of above-ground pool. While I clearly understand that is not a majority, it is enough to warrant some research to see if it would even be possible. Furthermore, while you may have said several times now that "no" means "no," others on this discussion board, including Michele, have also grappled with amending these definitions so please refrain from addressing me as if I were some sort of unethical self-serving tyrant.

To your other questions ... Yes, I keep talking about our bylaws because that is the name of the document were this restriction is contained. The bylaws are essentially part of what most states refer to as their CCRs. I'm not sure how prevalent it is with Michigan Site Condos, but we have what are termed the "Condominium Documents" which include Articles of Incorporation, Master Deed, Bylaws, and Rules and Regs. Master Deed and Bylaws I believe more closely relate to the term CCRs and require 66 2/3 vote. Rules and Regs require only board vote. Both the bylaws and rules/reg contain restrictions on what H/Os can do on and with their units. The Rules/Regs may further qualify a bylaw, but may not contradict -- which is why I was hoping to find a way to further qualify an above-ground as " ...."

While you may have never heard of it, both our Master Deed and Bylaws do specifically require mortgage holder votes for ANY amendment that materially alters or changes the rights of the mortgage holder, but that was not what I was referring to when I referenced "banks that never vote." I was referring to the bank-owned properties. Currently, it would be virtually impossible to pass ANY amendment to the bylaws, which is where the no-above ground rule is, because it would require a "yes" vote from EVERY H/O who actually resided in our community due to the fact that out-of-state owners and the banks own so many of the properties right now and never vote. They have not responded to any requests to complete proxy forms either.

Dee,

I said I hoped I was wrong about you and now I find that I was. I hope you'll accept my apology; I didn't mean to offend you. It's just that you seemed to be wanting to amend the rule by a board vote rather than a vote of the members and I really couldn't understand why. I know Michele feels the same way as I do; the rule cannot be interpreted to change the meaning of "no", but of course it can be amended; in fact that is the only way it can be changed.

I don't recall reading that 50% of your members want to change this rule. I believe you said 30% of the 60% who responded to a questionnaire, which is not 50% of the membership but rather only 18% -- a rather large difference. But, I wonder if mail-in ballots might be a better way to get the bank-owned and out-of-state property owners to vote instead of asking for their proxy. Just mail the ballots and state that they can be mailed in. This may surprise you but this has worked for many assn's that could not even get enough votes to obtain a quorum for the annual meeting. In fact AZ now has a state law requiring mail-in ballots.

I know not all assn bylaws and CCRs (perhaps your Master Deed) are uniform, but yours just seem to be so different and that is why I asked those questions. Every assn has governing documents which are (in the order of precedence) the articles of inc, CCRs (master deed, covenants,etc), bylaws and board-adopted rules ®s. The bylaws generally contain articles regarding the administration of the HOA, while the CCRs contain the restrictions. Some developers do include articles in the bylaws that really belong in the CCRs and vice versa and that's where the confusion comes in. It really is unusual for property restrictions to be contained in the bylaws. But, of course if yours do then you have to live with that!

Mary: Apology accepted.

We have tried both mail-in ballots and proxy forms with no success. The banks have bigger issues on their hands and the out-of-state homeowners simply could care less. Ironically, we couldn't even get an amendment passed to require a smaller percentage for quorum or to pass an amendment ... a fine spot to be in :-). It's even further complicated by the fact that the way our bylaws are written require 66 2/3 of owners (not members in good standing), so delinquent H/Os need to be counted in that percentage, but can't vote. Statistically, we could never pass anything the first three months of the year due to delinquencies. Yes ... it is a fun place to live :-)

humm ... so I have hurled ballots to also look forward to as a board member :-) Oh the joy!

There should be some sort of rule that requires each homeowner to serve on the board as a Member at Large at least once ... just so everyone gets a little taste of the fun!

Dee,

Even if it's 27% (I'm thinking it's even less)that want the change, it's still far from being a majority (50% + 1). W/o a majority pushing for a change, is it really worth the time and expense? In my HOA of 1700 homes, it costs just under $750 just to send a letter to the h/o's! If enough of the members want it badly enough they'll get together and push for a change. I wouldn't worry about it until such time as that happens. What % of the total membership is made up of out-of-state and bank owned property owners? If more than 33% it's definitely a lost cause!