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N4T Investigators: Tenant upset over HOA decision over "dog" fen - KVOA | KVOA.com | Tucson, Arizona

N4T Investigators: Tenant upset over HOA decision over "dog" fence

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TUCSON- Is it a reasonable enforcement of the rules, or did one man's homeowner's association go too far? Dan D'Agostino has buyer's remorse after renting a new home in Continental Ranch. It all centers around an incident where his dog jumped over the fence, and D'Agostino tried correcting the problem.

His dog "Penny" is a 2 year old pit bull mix, that has a lot of energy and sometimes likes to jump. This became a problem over the summer as the dog jumped over the fence and into his next door neighbor's yard.

"Hey my grandmother just got scratched by your dog pretty bad," said D'Agostino, who told us about what his neighbor said to him when his dog escaped. "My heart sank and I just felt horrible about the situation."

To make sure "Penny" never tries this again, he put up a chain link fence around the existing brick fence in his backyard.
 
"It solved the problem," said D'Agostino.

But he said after about two months, his HOA contacted his landlord, who told him the chain link fence violated the rules, and he was required to take it down.
 
"Absolutely not, I will not endanger the safety of my neighbor," D'Agostino said. "I'm open to suggestions, I'm open with coming up with an equivalent solution I said."

One of the suggestions posed by the HOA was a "dog run," which D'Agostino felt was not equivalent. The other suggestion was extending the brick wall in his backyard, but it was something his landlord did not want to do. He said both sides were deadlocked, until he said he threatened the HOA with a lawsuit if this couldn't be resolved. But he said his HOA also threatened his landlord with a lawsuit, and gave them an ultimatum.
 

"It was out of a fear that he could be bullied into submission and that's kind of what happened," said D'Agostino.
 
The News 4 Tucson Investigators obtained an email between D'Agostino and his HOA saying, "his problem is what is creating the potential risk, and the renter cannot claim the HOA must allow the chain link fence as a "reasonable accommodation." The Board upholds its responsibility to protect its members from known hazards...the appropriate course of action for the Association would be to report the dog to Pima County Animal Control, being that you have sent documented information regarding the harm it caused to your neighbor after your failure to contain the animal on your property. The Association hopes that you can find acceptable means to address the issue, while following the CC&Rs. There are numerous other "reasonable" ways he can control his dog without any significant expense and certainly without a chain link fence. A leash. Many outdoor dogs are kept on a rather lengthy leash. it will allow the dog to roam the entire backyard without the risk of jumping over the fence."
 
However the N4T Investigators found that suggestion from the HOA violates Pima County Law. Under Chapter 6, in the animal control regulations, it says "*with the exception of temporary tethering of horses--- the use of tie-outs such as chains, leashes, wires, cables or similar restraining
devices for the purpose of animal confinement is hereby prohibited."
 
"That's illegal," said attorney Ted Schmidt. "They're very vulnerable to other dangers."

Schmidt says that could be grounds for a potential lawsuit if something bad were to happen under those circumstances. Schmidt feels D'Agostino does not have a case against his HOA when it comes to the rules, but did feel his case may be worth a gamble in court.
 
"More often than not have had bad experiences with homeowners associations as opposed to good experiences and don't like to see a situation where the home owners associations are exerting their muscle and causing difficulty for a homeowner," said Schmidt.

The N4T Investigators reached out to Continental Ranch Community Association. Its representative declined an on camera interview, but released a statement saying, "there are 3,450 homes in this neighborhood and no other owner has had this same issue....everyone else in the community finds a solution to controlling their dogs that does not involve using a chain link fence. Mr. D'Agostino was given numerous alternate options that would meet the quality standards of the community, which he initially refused."

The wall is now extended in his backyard, but D'Agostino is walking away with buyer's remorse. It's unclear whether or not he will fight his HOA in court, but says for now, he'd rather be in compliance than face daily fines and other penalties.
 

If you have a story for the N4T Investigators, email investigators@kvoa.com or call the tipline 520-955-4444.

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