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CCOC Decision Summary

#15-06, Shearer v. Severn Run Homeowners Association (February 21, 2007) (Panel: Thorpe, Cook, Smith).

The homeowner (HO) filed this dispute to challenge the finding of his homeowner association (HOA) that he was in violation of the community rules by installing a 6-foot tall picket fence around his swimming pool.The HOA took the position that in order to maintain the open apperance of the community, only rail fences were allowed.

At the hearing, the evidence showed that the HO had applied for permission to build a white vinyl solid fence, which was denied by the HOA.He then built a wood picket fence without applying for permission.The evidence also showed that the HOA's own governing documents stated that fences "similar in design, dimension and material" to those installed by the builder of the community were permitted, that the builder had built a 6-foot solid wood privacy fence along the borders of the community, and that there were at least two other wood picket fences in the community which had been built at the time the community was constructed, although they were only 4-feet tall.Further, the HO showed that County law required that all swimming pools be surrounded by a fence 6-feet tall.The HOA's own expert witness had also taken the opinion that picket fences were consistent with the desire to preserve an "open view".

The hearing panel found that by adopting a rule that permitted only rail-type fences, and by refusing to allow the HO to construct a picket fence, the HOA had violated its own governing documents. The panel stated that in order to prohibit picket fences the HOA had to amend its governing documents.Therefore, the panel ordered the HOA to approve the HO's fence.However, because the HO had also violated the rules by constructing a fence without applying for permission, the panel denied his request for a refund of his $50 filing fee.


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