By Deborah Goonan, Independent American Communities
HOA lawsuits often arise from petty rules. And sometimes HOA rules defy common sense and threaten public safety.
That’s the case for Murray Randall from Wentzville, Missouri. Randall lives in Peine Lakes Estates, where he owns a spacious home with a backyard swimming pool, surrounded by a six-foot tall vinyl fence.
Peine Lakes HOA requires approval for all exterior improvements, including installation of fences. The problem is, Randall decided to install his fence first, and ask for permission later, according to a KMOV interview.
But the HOA won’t allow 6-foot fences, because, they say 4-foot is the maximum approved height. Randall says that a 4-foot fence isn’t tall enough to prevent children from climbing over and getting into his pool. He and his next door neighbors, all interviewed by KMOV, agree that a 6-foot fence makes more sense, and they think the HOA should allow Randall to keep his fence.
Instead, the HOA denied Randall’s request for a variance, and filed a lawsuit against him. A recent trial concluded with a deadlocked jury. According to the KMOV report, a new jury trial will take place later this month.
HOA putting kids’ safety at risk, Wentzville man claims, as lawsuit ensues
Updated Feb 5, 2019| Posted on Feb 4, 2019
WENTZVILLE, Mo. (KMOV.com) – A Wentzville man claims his homeowner’s association (HOA) is putting kids at risk by saying the fence he put around his pool is too high.
Murray Randall told News 4 he put the 6-foot vinyl fence around the pool because he is worried someone will drown if there is no barrier.
The problem though is that the HOA in Peine Lakes Estates never approved the fence. The association said they only allow 4-foot fences, with some exceptions.
Read more:
HOA putting kids’ safety at risk, Wentzville man claims, as lawsuit ensues
Why won’t HOA grant a variance?
So far, the HOA isn’t talking about its decision to deny Randall a variance for the purposes of preventing children from climbing over his fence, and possibly drowning in his swimming pool.
It’s puzzling. The HOA says it wants the news media to present both sides of the story, but then they won’t share their reasons for insisting on a 4-foot fence, when a 6-foot fence would be safer.
So, to most observers, it seems like the HOA board is suing mainly because Randall didn’t ask permission before building his fence.
This is why I never recommend that a homeowner skip the step of getting approval from the HOA before making any exterior additions or changes. The dispute becomes more about the egos of authority figures, and less about the homeowner’s choices or personal tastes.
Why didn’t the HOA ask neighbors their opinions on the restriction to a 4-ft. fence?
It’s obvious from the TV interview that Randall’s next door neighbors approve of his 6-foot tall fence. They say they don’t agree with the HOA’s 4-foot fence rule when the safety of children is at risk.
If the next door neighbors aren’t complaining about a 6-foot fence, then who is?
And how many Peine Lakes Estates neighbors think it’s a good idea for the board to authorize a costly lawsuit against Randall over this issue?
Typical of HOAville, the board does not need the approval of its members to file lawsuits against their neighbors. So the board rarely bothers to ask other members their opinions on any neighborhood controversy.
Why doesn’t Wentzville have a safety ordinance requiring a minimum 6-ft fence surrounding residential swimming pools?
I was curious about Wentzville, Mo. city code, as it pertains to residential fences. Here’s what I was able to find out:
e. Fences constructed of masonry, vinyl or wood shall be constructed no higher than six feet above the surrounding grade. Chain link fences shall be constructed no higher than four feet above the surrounding grade.
…
c) Swimming pool fences. Swimming pool fences shall be governed by chapter 500.
Source: Sec. 405.490. – Fence requirements. https://library.municode.com/mo/wentzville/codes/code_of_ordinances
When I referenced Chapter 500, I was unable to find any additional code on swimming pool fences.
I wanted to see if City Safety or Building Codes require a minimum fence height for residential swimming pools. Many local jurisdictions do. But, as far as I can see, there’s no specific code in Wentzville.
Hypothetically, if Wentzville were to adopt a residential safety code for swimming pool fences (as opposed to codes for HOA or public swimming pools), requiring a minimum height of 6 feet, then the HOA’s 4-foot fence restriction would be overruled by City Code.
But because the HOA’s rules are “more strict” than Wentzville Code — in the opinions of the City Manager and the HOA — the HOA gets to enforce their 4-foot fence rule against Randall.
What do experts say about pool fences?
So, what is the recommended minimum height for a swimming pool fence? According to the U.S. Consumer Product Safety Commission, a pool fence should be at least 4 feet high, but 5 feet or higher is better.
Read the full CSPC guide on pool safety:
Safety Barrier Guidelines for Residential Pools: Preventing Child Drownings
In the interest of neighborhood peace and decency, Peine Lakes Estates HOA could reconsider its denial of Randall’s fence. Aftter all, a 6-foot fence is arguably safer than a 4-foot fence, and the neighbors don’t object to it.
But because the HOA’s governing documents “Say So,” the HOA board a is counting on winning the 2nd jury trial, and then demanding that Randall pay back their legal fees.
However, after the first trial ended in a deadlock, perhaps the HOA shouldn’t be so certain that it will prevail in the end.
This one could go either way.