#359-O, Berger v. Fox Hills North Community Association (March 27, 1998) (Panel: Stevens, Price, Wilson) 

The homeowners (HO) disputed the conditions imposed by the homeowner association (HOA) on their application to construct a fence in their rear yard. 

The evidence showed that the HOA Declaration stated that fences "shall not extend beyond the front building line of the dwelling [nor] the front building line of the dwellings on all immediately adjacent lots."  In this case, the HO's house was at right angles to a house in its rear, so that the rear of the HO's house faced the side of the neighbor's house.  The front wall of the neighbor's house lined up with the middle of the rear wall of the HO's house.  The HOA approved the fence application, but only on condition that the fence not extend past the front wall of the neighbor's house – in short, on condition that the fence pass down the middle of the HO's back yard, dividing it into two sections.  The neighbor was the president of the HOA.  Along the border between the two lots was a line of evergreen trees.  The HOA's fence line would have placed enclosed area in such a location that it was not accessible from the deck stairs or basement door of the house.  There was evidence indicating that many houses in the HOA had fences that did not strictly conform to the fence rule. 

The panel relied on the decision in Kirkley v. Seipelt, 212 Md. 127 (1957) to the effect that a refusal to permit an architectural design application must bear some relation to the general plan of development, and must be reasonable, made in good faith, and not high-handed, whimsical or capricious.  The panel found that the HOA's interpretation of the rule in the past was unclear and not consistently applied, and found further that the HOA could not show a single example that it had ever applied the fence rule to any other home in the community the way it wanted to do here, and that there were several other non-conforming fences.  The panel concluded that "in light of the prior inconsistent ap0lication of the covenant and the absence of an explanation of community design or benefit, it is unreasonable to treat the [Complainant] differently from other similarly situated homeowners in the community."  The fence design required by the HOA significantly restricted the HO's ability to use their rear yard, and the line of trees along the common border would shield the fence from the neighbor.  The panel held that the HOA's decision was whimsical, capricious and unreasonable, and it reversed the HOA's decision.