There is a rule in the Liberty HOA Declarations which requires adjacent owner approval to erect a fence at a height in excess of six feet (see background on rule below).  While the rule may be well intending, as it is currently written, it has caused un-thought-of, unfair, unnecessary and avoidable situations which have adversely affected the property values of several homeowners. This, in turn, affects the value of all of our properties in Liberty (and thus Melissa) by way of lower comparable sales used in appraisals. The purpose of the petition is to have the Liberty HOA Board modify the existing rule as discussed below, to make it fair for all residents, and protect the property values in the community as a whole.

Severe straight-line winds ravaged our subdivision almost exactly a year ago, in the early morning of Saturday, May 23, 2015.  These winds completely knocked down or otherwise severely damaged the fences of a significant amount of residences throughout the Liberty subdivision, rendering them unrepairable and requiring replacement. As a result, several homeowners desired to erect new fences exceeding their original six foot height, and many did. Fences over six feet are generally thought of as being more desirable in the market place as they are considered privacy fences, and thus typically command a higher re-sell value. The City of Melissa allows fence heights up to 8 feet.

Unfortunately, the majority of the Liberty subdivision was designed by Hillwood to share back yards with two or more adjacent lots. Thus, under the current rule, for one homeowner to erect a fence higher than six feet, consent is required by at least four neighbors (two in the rear and one on either side), and in some corner lot cases, five neighbors.

Because of the attached-lot design of the community, and the current consent rule in place, replacing fences at a higher height in Liberty is something like setting off a line of dominoes during a game of musical chairs: Once one neighbor does it, the next is compelled to do so also in order to have a consistent fence height across their yard, and so on and so forth. However, the consent rule imposed by the Board unfairly forces the music to stop for one owner, when a disgruntled or otherwise dissenting neighbor does not grant consent, as opposed to allowing everyone an equal opportunity to improve their property as allowed by City of Melissa ordinances.

It is understood that the intent of the consent rule may have been to protect an adjacent lot owner from having a partially mismatched fence, against their will, when there was not an immediate need to replace the fence. However, in situations where a fence is needing to be replaced (or required to be replaced by the HOA), having a partially higher fence does not adversely affect the non-consenting owner at all. This is because they would still have the opportunity to upgrade the other portions of their fence to match, if they so desired. Plus, assuming the owner wishing to upgrade the fence is willing to pay 100% for it, the non-consenting neighbor would receive the benefit of not having to pay anything for a partially upgraded fence, which they would have otherwise been forced to pay at least half of the cost to replace. The HOA has actually required the non-consenting owner to replace the fence entirely out-of-pocket in some cases.

The point is, the non-consenting owner still has a choice – To live with the mismatch or to upgrade the remaining portion. However, under the current rule, the homeowner desiring to upgrade the fence height does not have that same choice when consent cannot be obtained.  This has resulted in cases where two or more neighbors cannot improve their property value because of the lack of consent from one. In other cases, owners have granted consent to one or both side neighbors who then replaced their fences at a higher height, only to wind up not being able to get the same consent from one of their two rear-line neighbors. This results in the same unwanted height variation that the rule was implemented to prevent. It also results in a lower property value than what would be appraised if the fence was of a consistent height.

Thus, the rule as currently worded is illogical, resulting in an unnecessary disparity, especially since the consent is not required by the City of Melissa building ordinances. A single homeowner should not be able to dictate the majority's desire to improve their property, especially if they retain the ability to do so themselves. The HOA Board, through the Architectural Control Committee (one and the same), has proven unwilling to grant exceptions to this rule, despite situations where one would expect common sense to prevail.  

Therefore, we the Liberty Homeowners desire to either remove the rule in its entirety, or at least modify the existing rule to allow owners to erect fences which exceed six feet in instances where all of the following conditions are met:

(1) Severe deterioration or an Act of God requires the fence to be replaced;

(2) The majority of an owner’s neighbors grant consent (for example, three of the four); and

(3) The homeowner is willing to pay for 100% of the cost

This benefits all parties as opposed to the current rule which restricts one party in favor of another, to no real benefit of the party being favored. 

 

 

  

 

Background on the Consent Rule:

The Declarations of Covenants, Conditions, and Restrictions for Liberty Homeowners Association Inc. (aka The Declarations), were amended and restated (aka the Third Amendment) on 10/16/12, subsequent to the purchase of many of our residences, and as a response to changes that the City of Melissa made to their ordinance code, specifically, in allowing fences to be constructed up to a height of eight feet, with a permit. The Third Amendment added the following requirement to the Declarations concerning fences:

“Notwithstanding any provision to the contrary contained in this Declaration and in addition to any prior approval  required to be obtained by the ACC, any modification to be made by  an Owner to a fence on its Lot that is greater than 6 feet (6') in height  will  require the written  approval  of  any other Owner on an adjacent Lot  which  other  Owner(s)  shares  all  or  a  port ion  of  the  fence  to  be modified”

At that time, Hillwood Development (a Ross Perot Jr. company), through various affiliated entities, maintained a majority ownership in the subdivision, and also comprised 100% of the Liberty HOA Board of Directors. 

This rule is more restrictive than what is required by the City of Melissa, which allows a homeowner to construct a fence up to eight feet, after applying for and obtaining a permit, but without any additional party consent.

 

 

 

 

 

This petition, if successful in modifying the subject rule, also requests that any fees or penalties currently assessed to a homeowner considered to be in violation of the rule, as previously written, be eliminated; and, any fees or penalties having already been paid by a current homeowner as a result of presumed noncompliance with this rule be refunded immediately.