STANDARD OF THE WESTSIDE AT BUTTERCUP CREEK MODIFICATION COMMITTEE
Subject: Fences
Date: Revised June 10, 2013
DECLARATION
Whereas Article IV, Section 3 of the Declaration of Covenants, Conditions, and Restrictions for Westside at Buttercup Creek requires and authorizes the Modifications Committee to develop standards for interpretation and regulation of the Restrictions, this Standard is hereby recorded.
LIMITATIONS
This Standard is to serve as an interpretation of the contents of the Declaration and as a guideline for the actions of representatives of the Association, including the Modifications Committee, the Management Company, and the Board of Directors. This Standard does not replace or amend the Restrictions, and should dispute arise, the contents of the Declaration shall take precedence over this Standard. In case of dispute, the decision of the Board regarding the validity of this Standard and the suitable interpretation of the Declaration shall be final.
STATEMENT OF STANDARD
All fence installations and modifications must be approved by the Modifications Committee prior to construction or installation as described in the Declaration [1]. The default fence for all lots is a solid wood privacy fence made of 6’ long, nominal 1x4” double notched (45 degree top corners) cedar pickets tight-fit to form a solid visual barrier. All fences external to the lot (i.e. those exposed to public view) shall be constructed with their “smooth side” out [2]. Fences along the perimeter of the neighborhoods (i.e. along Lakeline Boulevard, Buttercup Creek, and Austin Community College) [3] shall be solid wood privacy fence panels made of 6’ long, nominal 1x6” double notched cedar pickets, smooth side out, with steel poles for support. White stone pillars of a common design shall be places at periodic intervals along these fences. These fences shall all be stained with a matching cedar colored stain. Gates and driveways are not allowed along these fences [4]. While the maintenance of these fences is the responsibility of the respective Owners[5], the Association may provide, at its sole discretion, supplemental maintenance (in the form of repair, replacement, and staining) in order to maintain the external appearance of the neighborhood. Wood fence materials (other than those covered by the previous paragraph) may be left un-treated, sealed with a clear sealant, or stained and sealed with a cedar colored stain matching the fences along Lakeline Boulevard. The Declaration requires that fences must be maintained in harmony with respect to color, to those of neighboring lots [6]. The default wood fence for all lots as mentioned above can be modified when being replaced to match the standards of the neighborhood perimeter wood fences, which is made of 6’ long, nominal 1x6” double notched cedar pickets, smooth side out, with steel poles for support. Homeowners may choose to use either wood or steel poles, but neither should be visible from the street. When replacing fences that divide homeowner lots, the homeowners who share that section of fence can decide if they want to have the “good neighbor” fence design or have the smooth side face one lot or the other. Wrought iron fences are only allowed for the back fence for those lots backing up to a green belt [7]. They shall be painted solid black in color. The style and appearance must be approved by the Modifications Committee. In addition, the first two lots along either side of any greenbelt intersecting with a public road must maintain the identical modification. Sections of Westside Preserve will have wrought iron fences standard along preserve areas.
Chain link or other wire fences are expressly prohibited [8].
Modifications to existing fence locations are discouraged, especially where common lot boundaries are concerned [9]. Modifications to fences should maintain a uniform appearance between neighboring houses [10]. Fences may not be moved forward to more than three-quarters 3/4) of the depth of the house [11], although original fences are allowed to exceed this requirement. Under no circumstances shall a fence be allowed to be placed where it would pose a safety hazard to Residents or Guests of the Neighborhood [12]. This includes, but is not limited to, obstruction of view at intersections and creation of inaccessible areas. City Ordinance may further restrict the location or modification of fences.
Fences internal to the lot, such as those used for safety fencing around pools, etc., may be of wood picket or wrought iron consistent with the requirements listed above [13]. These fences should be less than or equal to the six foot fence height limit and not visible from outside the perimeter privacy fence of the lot. Where a portion of the internal fence may be visible over the perimeter fence, i.e. due to contours of the lot, etc., it shall have an appearance that is harmonious with the remainder of the lot fencing.
All fences must be maintained by the Residents or Owners of a lot [14]. Broken pickets, collapsing sections, damaged posts, etc. should be replaced or repaired promptly, and stained to match the existing fence if necessary. Such repairs, as well as application of a clear sealant or a cedar colored stain to match the Lakeline fences, shall be considered maintenance rather than modifications, and not subject to the modification committee approval process [15]. However, in cases where such maintenance would result in a drastic change in the appearance of the fence, committee approval is required to avoid any misunderstandings with respect to the Restrictions.
SPECIFIC REFERENCES AND RATIONALE
This section is intended to provide the background behind the preceding Statement, either by direct references to the Declaration and/or by explaining the reasoning behind specific requirements. These references may not represent the entire set of supporting documentation provided by the Declaration and/or previous decisions by the Modifications Committee or the Board of Directors.
[1] Article IV, Sections 3 & 4; Article X, Sections 2 & 24.
[2] Based on the existing fencing in the neighborhood and the associated wording in the Declaration and the associated Supplemental Declarations. Pertinent sections include, but are not limited to: Article IV, Section 4; Article VIII, Section 3; Article X, Sections 4, 10, 11, 17, 28, and 31; and Sections 1 of the Supplemental Declarations.
[3] Based on the existing fencing surrounding the neighborhood and Article V, Section 7; Article VIII, Section 3; Article X, Section 17; and Sections 1 of the Supplemental Declarations.
[4] Article X, Section 27.
[5] Article VIII, Section 3, Article X, Section 17, and Sections 1 of the Supplemental Declarations.
[6] Article X, Section 17.
[7] This restriction is based on the condensation and interpretation of many sections of the Declaration, including all of the Supplemental Declarations for the Neighborhood. These include, but are not limited to: Article IV, Section 4; Article VIII, Section 3; Article X, Sections 4, 10, 11, 17, 28, and 31; and Sections 1 of the Supplemental Declarations.
Article X, Section 28 states, “All walls and fencing shall be made of wood, ornamental metal or brick except as set forth herein or in any applicable Supplemental Declaration filed by Declarant, or as otherwise permitted in the discretion of the New Construction Committee or Modifications Committee, as the case may be.” Wrought iron fences would be classified as “ornamental metal” fences, and thus are allowed under this provision, subject to the rest of the Declaration and Supplemental Declarations. The Supplements for Neighborhood Sections 3 and 4 indicate that the initial owners (i.e. the Builders) of specified lots to be used as model home lots may choose to replace the back fence of said lots with wrought iron while those homes are used as models, but to be replaced with wood privacy fence when sold. In addition, these Sections allow for a block of lots backing greenbelts to have wrought iron fences if all owners of the lots make identical modifications. The Declarations are very specific that a uniform appearance must be maintained. The Supplemental Declarations for the remaining Neighborhood Sections do not make this allowance and specify only wood privacy fence, smooth side out. So, while Article X, Section 28 makes an allowance for the use of ornamental metal fences, the Supplemental Declarations make it very clear that the allowance was for the purpose of model homes and homes along greenbelts. Even then, the Restrictions were prohibitive. In addition to the statements of the Declaration, it is apparent that allowing wrought iron fencing in areas exposed to public view (i.e. along the front or sides of a lot) introduces other complications with the Restrictions. Such a modification exposes the entire back lot to observation and regulation by the aesthetic requirements of the Restrictions. Various sections, including Article X, Sections 4, 10, and 11, make it clear that solid privacy fences are required for activities normally allowed in back yards.
For these reasons, wrought iron fences will only be allowed along green belts, where the lot is not visible from any public street. Upon approval by the Board, this standard is intended to relax several of the requirements of the Supplements in this case, where, 1) Supplements for some Neighborhood Sections containing greenbelts do not expressly allow and/or would appear to prohibit wrought iron fences along greenbelts, and 2) since existing (unapproved) wrought iron fences along greenbelts are already in violation of the uniformity requirement, the “identical” requirement would be waived for lots more than two houses away from any street.
[8] Article X, Section 28. All wire fencing is deemed to fall under this Restriction as well as those Restrictions related to unapproved uses such as animal husbandry, (Article X, Section 3).
[9] In general, it has been the policy of the New Construction Committee (i.e. Lumbermen’s) to not allow changes in fencing from that initially approved for the Builder. Given the range of problems involved with approving this type of modification, the Modifications Committee concurs with this policy and will only approve a modification if a true hardship can be displayed. In addition, the Restrictions of Article X, Section 2 on Reasonable Enjoyment would indicate that modifications on common lot boundaries, which would affect the Owners of both lots, should ideally have mutual consent. However, the Board has determined that the Association cannot deny a change based on a mutual consent requirement. If a dispute arises based on such a request, the Homeowners must find their own resolution; neither the Association nor the MC can be held responsible, nor be required to act as an arbitrator to resolve the dispute.
[10] As mentioned above, the Restrictions are also very clear on the uniformity requirement between neighboring lots.
[11] The three-quarters figure was chosen as an acceptable guideline based on the current neighborhood layout. There is no conceivable reason that a fence should be allowed to approach the front face of a Residence (this is expressly restricted in the Declaration) and the uniform appearance of the neighborhood would be compromised by allowing such to occur.
[12] This is an enhancement on the requirements of Article X, Section 31, which governs sight distance at intersections. The safety of our Residents, their Guests, and property is a concern everywhere, not just at street intersections.
[13] Fencing internal to the lot (that is, fencing surrounded by the existing exterior fences) is not directly addressed by the Declaration, but the opinion of the MC is that these types of fences should be allowed, as long as they are not used in a manner in violation to the Declaration, and especially where not visible from outside the property.
[14] Article X, Section 17.
[15] To address concerns of residents with respect to staining and similar maintenance, sealing and staining with the approved stain color has been deemed a maintenance issue and therefore does not require pre-approval. However, as indicated in the statement, should such maintenance result in a drastic change in appearance (such as complete replacement of existing fences or bleaching and staining of weathered fences) the MC approval process should be followed to avoid possible confusion with the Management Company, etc.
COMMENTS
The contents of this Standard are to serve as restrictions and guidelines to the builder and homeowner, and to serve as guidance for decisions made by the Modifications Committee, New Construction Committee, and the Board.