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Old 11-03-2016, 04:01 PM   #1
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Retaining Wall part of a Fence?


I know this is not a legal forum and I just want to get a feedback. We got into a disagreement with our HOA over our current fence project. I have built a small retaining wall to partially level our sloping grade and placed a new fence on top of it. Our HOA is claiming that our retaining wall is part of the fence and that our fence is now over 6 feet tall and is asking us to cut down or remove our fence. Attached is a pic and a drawing. Thank you
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Retaining Wall part of a Fence?-9825_grade_drawing.jpg   Retaining Wall part of a Fence?-img_5311.jpg  
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Old 11-03-2016, 04:07 PM   #2
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Re: Retaining Wall part of a Fence?


Of course you got written approval from the board before building that fence, right?
If not the fence will need to go.
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Old 11-03-2016, 04:10 PM   #3
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Re: Retaining Wall part of a Fence?


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Originally Posted by joecaption View Post
Of course you got written approval from the board before building that fence, right?
If not the fence will need to go.
I got a written approval, but they did not ask for any plans etc. I just submitted that I will do a landscaping to level the grade and will put up a new fence.
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Old 11-03-2016, 04:13 PM   #4
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Re: Retaining Wall part of a Fence?


It's a matter of where you stand.

Inside looking out, it's 6', outside looking in it's 8'+ .

Is there a way to request a variance in the HOA handbook?

or a committee to appeal to?

or any other legal means of appeal?



ED
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Old 11-03-2016, 04:17 PM   #5
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Re: Retaining Wall part of a Fence?


Did you get and/or need a permit? I would need a permit for the fence and the grading around here. And the grading would need an inspection. The city here also mandates where the fence can be built and how high.

I ask about the permit because if you needed one then didn't get one the HOA sort of has you buy the cojones...

If you needed the permit, submitted the plans to the city, and they approved the fence and it is recognized as being a 6ft tall fence by the city, and you got the written approval from the HOA then maybe you tell the HOA to go pound sand.. but expect them to have a hissy fit..
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Old 11-03-2016, 04:20 PM   #6
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Re: Retaining Wall part of a Fence?


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Originally Posted by de-nagorg View Post
It's a matter of where you stand.

Inside looking out, it's 6', outside looking in it's 8'+ .

Is there a way to request a variance in the HOA handbook?

or a committee to appeal to?

or any other legal means of appeal?


ED
They are not willing to issue a variance even though they have approved other structures in our subdivision. They basically pick and choose. They knew that I'm building a retaining wall as it took me all summer because of my unrelated illness.

My opinion is that since the retaining wall was built to level the grade and the fence is sitting three feet behind the wall, it is not part of the fence.

Technically, I could have just dump a bunch of dirt in front of the fence without building the retaining wall and the result would be the same.
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Old 11-03-2016, 04:23 PM   #7
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Re: Retaining Wall part of a Fence?


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Originally Posted by ryansdiydad View Post
Did you get and/or need a permit? I would need a permit for the fence and the grading around here. And the grading would need an inspection. The city here also mandates where the fence can be built and how high.

I ask about the permit because if you needed one then didn't get one the HOA sort of has you buy the cojones...

If you needed the permit, submitted the plans to the city, and they approved the fence and it is recognized as being a 6ft tall fence by the city, and you got the written approval from the HOA then maybe you tell the HOA to go pound sand.. but expect them to have a hissy fit..
I got a permit from HOA, but no building plans etc.

I have also inquired about a permit with our county building dept but they said that I don't need a permit for retaining wall under four feet.
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Old 11-03-2016, 04:27 PM   #8
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Re: Retaining Wall part of a Fence?


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Originally Posted by ShakyHands View Post
I got a permit from HOA, but no building plans etc.

I have also inquired about a permit with our county building dept but they said that I don't need a permit for retaining wall under four feet.

What about a permit from country for the fence or a permit to alter the grading as much as you did? Not trying to argue.. But those are 3 different things around here and all would need permits. Heck if I dig up more than 50sq ft of dirt they want me to get a permit in these parts..
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Old 11-03-2016, 04:37 PM   #9
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Re: Retaining Wall part of a Fence?


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Originally Posted by ryansdiydad View Post
What about a permit from country for the fence or a permit to alter the grading as much as you did? Not trying to argue.. But those are 3 different things around here and all would need permits. Heck if I dig up more than 50sq ft of dirt they want me to get a permit in these parts..
I spoke with the county officials and they rarely issue a permit for over 6 feet fence. Usually only for commercial buildings etc. As far as I know, the grading should not be an issue. As I said before, I don't need a building permit for retaining walls under 4'.

My whole argument is that since the grade has been raised by the retaining wall, the fence is still just 6'. Only now, the fence is sitting on top of a raised grade. Still 6' from both sides.

Actually, it would save me all these headaches if the permits were required for everything that I have just built.
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Old 11-03-2016, 07:06 PM   #10
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Re: Retaining Wall part of a Fence?


I'm certainly not a lawyer and fully realize that property law in your jurisdiction is different than mine, but up here what your talking about is called a 'restrictive covenant'. Assuming it is valid and enforceable, the first thing I would do is ask to see the 'rule' (convenant) you are alleged to have broken (if you don't know about it and don't have a copy of it as part of your title package, it's likely not enforceable). The rule needs to be clear, not some association's interpretation of it. In my mind, a retaining wall is as much a fence as it is a duck. If it is vague, including which way the structure is viewed from, that is in your favour. The other issue is the enforcement avenues in your jurisdiction. Up here they (the HOA) would have to sue you and establish that surrounding properties were diminished or disadvantaged. If they won the court could order any number of remedies. The HOA can't fine your or order you to tear it down. Neither can the municipality unless it violates a land use bylaw.

Keep in mind that, and not to discourage to good fight, win lose or draw, neighbourhood BBQs probably won't be the same.
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Old 11-03-2016, 09:15 PM   #11
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Re: Retaining Wall part of a Fence?


I really like Lenaitch's comments...

I would just add that often HOA's get populated by a few that consider it their opportunity to be police/jury/ and judge.

But they are members and neighbors in the community.. and they probably want recognition/respect from their neighbor's/community more than any normal person. Play on it.

Can you solicit neighbor's (not HOA board) support in that they find your project fine and attractive. I would suggest you try that first, rather than backing them up against a wall....be Joe nice... give them some minor escape route... ( I don't know what... maybe a few boards off the front of the wall... find something that gives them a facesaving....)

If they are a normal HOA populace of self-appointed (I know there was an election of 4 people running for 4 spots) beauracrats, they'll fold like a limp ...k.

Good luck

By the way, from the view I have, your project appears most aesthetically pleasing.

Good luck
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Old 11-07-2016, 10:50 AM   #12
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Re: Retaining Wall part of a Fence?


In parts where we live, if you go back (horizontal) greater or equal to the actual height of the wall, anything beyond that is considered a different structure not associated with the first. make sense?
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Old 11-07-2016, 11:00 AM   #13
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Re: Retaining Wall part of a Fence?


So who complained?
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Old 01-09-2017, 09:54 PM   #14
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Re: Retaining Wall part of a Fence?


Yes, the height of the retaining wall and fence would be considered the total fence height. The piece you are missing is clarification from the city/county and/or the HOA on the minimum distance a fence must be located in order for a fence’s height to be considered separately from the combined height of a retaining wall and fence. If there is no such code, than you may have a strong argument that the fence is reasonable distance from the wall to be considered a separate structure.
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Old 01-10-2017, 09:06 AM   #15
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Re: Retaining Wall part of a Fence?


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Yes, the height of the retaining wall and fence would be considered the total fence height. The piece you are missing is clarification from the city/county and/or the HOA on the minimum distance a fence must be located in order for a fence’s height to be considered separately from the combined height of a retaining wall and fence. If there is no such code, than you may have a strong argument that the fence is reasonable distance from the wall to be considered a separate structure.
typically if the distance between the two is equal to or greater than the height of the smaller wall, it would be its own entity. this is in my area, according to city codes.
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