That evening I walked. I do walk in the evening, so this was not a stakeout, but I will admit I chose my route. As I came up the far sidewalk on Dana’s street, I saw two women standing in her front yard in the last of the light, looking at the new fence with their arms crossed in that comfortable way friends stand. One of them was Dana, the other one was Vivien Caldwell. I slowed down without meaning to, and I heard Vivien say, clear as a bell across 40 feet of quiet suburban evening, “This is exactly what we want the neighborhood to look like.” Two weeks earlier, that woman had put a fingernail on my property and told me the identical product was the wrong white.
I sent a formal records request under the association’s own bylaws that gives members the right to inspect association records and I asked for three categories: architectural applications and dispositions for the current and prior year; any board or committee resolution establishing color standards for fencing; and the minutes of any meeting at which the fence at my address was reviewed or voted on. I asked for nothing about Dana personally. I asked for the association’s records about the association’s own decisions, which is exactly what the bylaws entitle a member to see. Vivien’s response arrived faster than any communication she had ever sent me, which told me a great deal. She wrote that my request was overbroad, that it appeared calculated to harass other homeowners, and that the board would not participate in a fishing expedition into private residents’ improvement plans. She copied the management company. She did not copy the rest of the board, which I noticed and which is why my reply went to everyone. I wrote back short. “I have not asked for any homeowner’s personal information. I have asked for the standard the association is currently using to fine me. If a color standard exists, produce it and I will comply this week. If it does not exist, say so in writing.” And I hit send with Russell Nance and Clare Donnelly on the line. Two hours later, Russell replied to all. He wrote one sentence and it changed the shape of everything. “Vivien, I think we should provide the portion of the records a member is entitled to review.”
The next morning, I got a new notice, and it was not a response to my records request. It was an escalation. The association had referred my file to a formal enforcement hearing scheduled for the third week of the following month. The notice stated an initial fine amount, warned that continuing daily fines could be assessed from the date of the hearing forward for as long as the non-conforming condition persisted, and noted that enforcement costs, including attorney fees, could be charged to my homeowner account. It was three pages long and it was in its way a very well-written document. It was designed to do arithmetic in my head. Then Vivien called me directly and the timing was so perfect that I understood the escalation had been the setup for the call. Her voice was different, warmer, almost kind. She said she thought this had gotten bigger than it needed to be and that nobody wanted a neighbor buried in fines over a misunderstanding. She said that if I were willing to be cooperative, she believed she could make most of this go away fairly quietly. She used the word “gracefully.” She offered me an exit and she made sure I understood the exit came from her personally as a favor and not from any rule. I asked her one question. “Cooperative meaning I take down the exact fence you approved for Dana Prescott 11 days after you cited mine?” The silence on that line went on long enough that I could hear a television somewhere in her house. When she spoke again, the warmth was gone entirely, replaced by something flat and careful. “Where did you get that information?” She recovered quickly. I’ll grant her that. Within 30 seconds, she had produced four separate explanations. The two properties were in different parts of the neighborhood with different architectural characters. The light exposure on the corner lot was different from mine. Dana’s fence, she said, sat more harmoniously against the existing landscaping. And finally, architectural approval is always property-specific so no approval at one address establishes anything at another. She delivered all of it smoothly, in order, like a woman reading from cards she’d written during the pause. I let her finish. Then I asked the only question I had been asking since the beginning. “I understand the properties are different. Tell me what is wrong with my color.” She did not answer. She said the hearing would be the appropriate venue and she ended the call. I wrote the whole thing down including the length of the silence which I had counted.
Two days later, Clare Donnelly called me and she was nervous in a way I found completely understandable. She was the secretary of a board whose president had a long memory and she had a family and a life in that neighborhood. She said she wasn’t taking sides and I told her I wasn’t asking her to. She said she wanted me to know in her capacity as records custodian that the architectural committee’s filing had been inconsistent for years. That submissions sometimes lived in the management company’s inbox and sometimes in a binder in her closet. And that she was working through it. Then she said the things she had actually called to say. She had gone back through every set of minutes for the previous 14 months and she could not find any meeting at which the committee had reviewed, discussed or voted on the fence at my address. Not a motion, not a second, not a vote tally, not a note in an executive session summary. Nothing. I asked her the obvious question and I asked it gently because I could hear what it cost her to be on that phone. “If the committee never voted on my fence, then who decided it was non-compliant?” There was a pause on her end. Then Clare said, “Based on the records I have, it was only Vivien.” So I stopped arguing about the fence. I decided I did not need to prove my fence was beautiful, appropriate, or harmonious. I needed to prove only one thing, which is that the same product in the same color from the same run had been called unacceptable at my address and acceptable at another by the same person within 11 days with nothing in between but who owned it. That is not an aesthetic claim. That is an arithmetic claim. And arithmetic does not care about anyone’s taste.