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Fence tests durability of homeowner covenants

THE BALTIMORE SUN

In the beginning, the story seemed straightforward enough: a mother, worried about her hearing-impaired son running into the street, fenced in her front yard to protect him.

But because it is Crofton's only front-yard fence - built in violation of community rules - the tale has more twists and turns than the cul-de-sac neighborhood where the drama lingers, despite a supposed settlement. Tears have been shed, nasty glances exchanged, Christmas lights cut - all linked to tension the fence has wrought.

Even after both sides announced a settlement, the case remains unresolved. After a year of fighting, no one is sure who won.

To outsiders, the vitriol might seem like much ado about lawn ornaments. But to many residents, the issue has centered on their right to buy into a neighborhood with a set of rules they agree to live by - and expect their neighbors to agree as well. Crofton's covenants are as much a part of the community as its country club or its village green.

Covenants - agreements initiated by developers and enforced by homeowners associations - keep lawns neatly mowed and boats out of driveways. The Crofton front-yard fence case tests the rigidity and strength of those rules.

It pits a mother who says she needs an accommodation for a disabled child against a homeowners association's unwillingness to bend the rules. State and federal agencies have weighed in, thousands of dollars have been spent on attorneys' fees, scathing words have been splashed across local editorial pages.

Some neighbors think the winner is Beate Kanamine, the woman who built the fence without permission. Under a settlement announced May 8, she could keep up the offending fence until October 2002. In exchange, Kanamine had said she would drop the discrimination complaint she filed with the federal Department of Housing and Urban Development alleging discrimination under the Fair Housing Act.

But Kanamine changed her mind last week when the Maryland Commission on Human Relations, investigating on behalf of HUD, issued a finding of probable cause that discrimination occurred. Though the commission's investigators based their finding largely on Kanamine's account of events and one visit to the property, Kanamine says she was vindicated and will push ahead with the case.

"Now, I don't have to give in as much as they have to make concessions," Kanamine said of the Crofton Civic Association. "Really, they have not made any concessions at all."

Public records show the civic association devoted hours of time - and endured plenty of criticism - as it navigated the thorny issue.

In an interview before the settlement announcement, Richard Trunnell, president of the civil association, acknowledged that the fence case wasn't always a comfortable one. It cost the association much of the $6,000 it had budgeted this year for covenant enforcement, and could cost more if Kanamine pushes on.

But Trunnell doesn't consider the settlement a victory for Kanamine.

"It shows that we will look at an issue fairly, we will decide on merit, and we will do the right thing, whether it's politically comfortable or not," he said.

Many are watching the fence case unfold because covenants have become so common.

"Most modern subdivisions have covenants of some type and, nowadays, they tend to be much more sophisticated," said Anthony F. Christhils, a longtime land-use attorney in Anne Arundel County. "They're intended to ensure a certain uniformity."

That uniformity has attracted millions of homeowners. In 1970, 1 percent of housing units nationwide were part of a homeowners association. By 1998, that figure had increased to 15 percent, according to Robert H. Nelson, a professor with the University of Maryland's School of Public Affairs who has been studying property issues for 25 years and written several books on the subject.

Crofton is growing at a breakneck pace - its population has nearly doubled to 20,000 since the 1990 census. But the new residents are lured more by its proximity to Washington and Baltimore than its village ambiance, leaving old-timers cleaving to - and explaining - the rules that set Crofton apart.

Robert Johnston, a 10-year resident and associate broker with Long & Foster Realtors, is used to the awe as house-seekers circle Crofton Parkway.

"People are very impressed with the look," Johnston said. "I tell them we have covenants here, and generally people do a pretty good job maintaining them."

Johnston said he's not sure if the Kanamine fence and subsequent settlement - valid or not - undermine the covenants. Enforcement is a slippery slope, he said. Once one home violates the rules, he said, others follow.

But Trunnell doubts that the Kanamine settlement will prompt others to violate the rules.

"No one," he said, "wants to put up a fence and then tear it down."

Covenant violations crop up every so often in Crofton, often by homeowners who didn't know they were breaking rules and quickly return to compliance when told of the infraction.

Before Kanamine's fence, the most divisive covenant dispute in recent memory occurred in 1993, when Robert and Ellen Kight built a basketball court and driveway extension. The Kights eventually moved, and the court is gone.

Nationwide, when covenant disputes land in state courts, judges tend to side with the homeowners association, Nelson said.

"When you enter into these associations, you should know the rules of the game - and that's the way the courts look at it," he said.

But Nelson said judges view an issue differently when it involves a question of disability and reasonable accommodation instead of an aesthetic violation.

For B. J. Loftis, that distinction has been the issue all along. Loftis, a fence opponent, argues that the fence does more to stigmatize the little boy than protect him.

"People have hearing-impaired children all over the world - and they're not fencing them in," she said.

Mike Kaika is familiar with the issues of reasonable accommodations, especially regarding hearing-impaired children. Hearing-impaired since age 23, Kaika and his wife have two children, one of whom is hearing-impaired, and raised them in a development that prohibited front-yard fences.

"My wife and I never gave it a thought to put up a fence in the front yard, only in the back yard, where it was permitted," he said.

A backyard fence, Kaika continued, "is a reasonable accommodation for any child, deaf or hearing."

Edwin F. Dosek, the Crofton Civic Association's president from 1990 to 1998, said that while the settlement was reasonable, the case dragged on too long and the CCA appeared to lose its grasp.

"That's not productive at all," he said. "More than that, it's created a poison in the neighborhood that will never go away until the fence comes down."

But in some ways, the fence has brought neighbors closer, Loftis said. During the dispute, more than 30 neighbors regularly exchanged e-mail keeping each other updated on the fence. When the settlement was announced, the e-mail group learned of it minutes after the press did.

Kanamine is not on the e-mail list, and not in the neighbors' loop.

"What are we going to say to her?" Loftis asked. " 'Take down your fence?'"

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