Fence Variation Lawsuit Is a Question of Authority

A neighbor’s lawsuit over the construction of a fence that violated CC&R restrictions recently fell flat in Washington state. Although the court found the restrictions ambiguous — never a good situation for your clients — the association was protected by the authority the documents granted the board and the Architectural Control Committee (ACC).

The fence at issue replaced an existing fence with alternating cedar slats that was in poor condition. The owner received verbal approval to replace the fence at a board meeting. He arranged to replace the dilapidated fence with a solid cedar style wood fence. The fencing was similar to other fences in various areas of the community but lacked the spacing of the previous fence. Before the replacement project was finished, the next-door neighbor submitted a written complaint to the association.

The neighbor asked the board to order the removal of any new fencing and require the replacement to be an alternating cedar slat fence. He argued that, under the CC&Rs, the only permissible fence style was the style described in an exhibit in the association’s Wildlife Network Management Plan.

After two board members and the association attorney conducted an inspection, the ACC issued a written approval for the fence. On the same day, the attorney notified the neighbor that the board was rejecting his complaint because the fencing described in the wildlife plan was required only along wetlands and wildlife networks.

The next month, the neighbor sued the fence owner and the association. He sought a permanent injunction requiring the owner to remove the solid fencing and replace it with a fence with the same design and dimensions as the previous fence.

Read our new article to learn why the neighbor’s case ultimately fell through and find out what your association clients can do if they find themselves in a similar situation: Court OKs ‘After-the-Fact’ Fence Variance

Best regards,
Matt Humphrey
President