Oconomowoc family in fight with HOA over playground and trees after daughter's kidney surgery

OCONOMOWOC, Wis. (CBS 58) -- A little girl Oconomowoc wants to play on her backyard playground after recovering from kidney surgery, but her fun is being threatened by the neighborhood homeowner's association.

The Sanders family says they had gotten permission to put up trees and a playset by the previous homeowner's association president, but they recently received a letter.

"We received a letter from the attorney for the HOA board of directors on the 17th of June," said Tim Sanders.

The family opened the letter a day after their 6-year-old daughter had a kidney transplant. Sanders says the notice threatened legal action if the playground and trees were not taken down from their lot.

Ashlin got an E. Coli virus at the age of three, and it turned into hemolytic-uremic syndrome. Her dad says it attack Ashlin's red blood cells, does a lot of damage to the body, and shuts down the kidneys.

Sanders says the play structure has always been open to all their neighbors.

"Why would any family have to fight for a safe space for their children and every other child in this neighborhood," said Sanders.

A change.org petition now has over 5,000 signatures in support of the 6-year-old and her playground.

Sanders says the association knew his daughter had special needs. Ashlyn's caregivers are say the playground is necessary for her recovery and development, and the trees serve as an important barrier for her special needs.

The homeowner's association did send a response. It reads:

The Prairie Creek Homeowners Association Board of Directors was compelled to take action with respect to the violations of the HOA’s restrictive covenants present on the Lot at 1330 Prairie Creek Blvd. because of the numerous homeowners within the subdivision that had complained to the Board. Neighboring homeowners complained that the way the trees were placed in a line at the front (street-facing) side of the lot (1) did not fit the harmony of appearance within the subdivision, which encourages an open concept; and (2) led to safety concerns, such as children running out into the street from behind the trees, robbing motorists of the ability to see them in time to stop. The HOA’s Board of Directors made several attempts to compromise with the residents at 1320 Prairie Creek Blvd., who own the adjacent lot at 1330 Prairie Creek Blvd., before even considering hiring an attorney, but the residents were unwilling to compromise. Most recently, in May 2018, the current Board President met in person with the resident, Mr. Tim Sanders, to try and resolve the situation. The Board President asked Mr. Sanders if he received approval from the previous board of directors to put up the playset and plant what is essentially a “tree fence” across the street-facing side of the lot, but Mr. Sanders was evasive in his response. On behalf of the Board, the President asked Mr. Sanders if he would simply remove the tree fence from the front of the lot as a way to compromise and resolve the situation, but Mr. Sanders refused, saying he would not remove the trees, and the HOA will have to sue him. At that point, the HOA Board felt it had no choice but to hire counsel to assist with enforcement of the Declaration of Covenants.

Importantly, the HOA Board of Directors had no idea that Mr. Sanders and Ms. Hays had a daughter who was sick and in need of a kidney transplant. No one within the HOA had complained about the existence of the playset on the lot. Had Mr. Sanders been willing to compromise with the Board about the tree line on his front yard, the Association would never have hired an attorney to get involved. Had Mr. Sanders approached the HOA Board to let them know the playset is important to him because it is for his daughter, Ashlin, and had advised the Board of her health issues, this would have played out differently. The Board is saddened that Mr. Sanders instead decided to bring this to the news and social media, making the assumption that the Board would not care about his and Ashlin’s story. The opposite is true: the Board cares and wants to compromise, as has been communicated all along.

The concern most often expressed by the neighboring homeowners is that the line of 12- foot tall arbor vitas planted across the entire front length of the lot interferes with the harmony of appearance within the subdivision. The Declaration of Covenants is very specific about the open concept required in the neighborhood, and that is evident within the rules about fencing: fences are only allowed along the rear and side yards, and can only be of a maximum height of 4 feet on the side yards and 6 feet in the rear yard. The only kind of fencing allowed in the front yard is ornamental and split-rail, and the same can only be in the corners of the front yard. This is why the Board asked Mr. Sanders simply to remove the trees that are lined up on the front/street side of the lot, but as stated, he was unwilling to compromise.

The June 14, 2018 letter that the HOA’s attorney drafted to Mr. Sanders and Ms. Hays was meant to call to their attention every aspect in which their use of the lot at 1330 Prairie Creek Blvd. violates the Declaration of Covenants. According to the Covenants, every Lot within the HOA is required to have a single family home built on it. Further, the placement of any other structure or landscaping on a lot requires the prior approval of the HOA’s Architectural Control Committee, and the HOA does not agree that such approval was granted in advance to Mr. Sanders and Ms. Hays. The Board of Directors for the HOA has a fiduciary duty to act on behalf of all the homeowners as their elected representatives and to enforce the Covenants. When many neighbors complain about the actions of one lot owner, and the actions clearly run afoul of the Covenants, the Board is compelled to take action.

The HOA promptly received a response letter from an attorney hired by Mr. Sanders and Ms. Hays. The Board has since met with the HOA’s attorney and has discussed some ideas on ways these issues can be resolved short of litigation, and the HOA’s attorney will be in touch with Mr. Sanders and Ms. Hays’ attorney early next week to explore that. One thing the HOA may be interested in exploring, based on Mr. Sanders’ comments that he sees the playset as a “community playset,” is truly making that a reality by putting easements in place to allow all the children in the subdivision to use and enjoy the playset. Safety concerns come first, however, and must be addressed. All of this will be discussed between the attorneys in the coming week.