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Fence line fight: New Avimor residents say development won’t let them fence land they paid for

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Two homeowners in Avimor say they are being short-changed by the planned community’s developer after they moved from out-of-state to find their backyards do not encompass their entire property, and a request to move their fence line was denied. 

Jessica and Dan Merz and their next-door neighbor Kristin Hirai both purchased homes in the growing development on the Ada County/Boise County line in the last year. They say part of the deal was a third of an acre lot with their home. But, when they arrived, they both said their backyard was smaller than what they were expecting. 

“After we put down the deposit, we had a lot of questions,” Jessica Merz told BoiseDev. “I remember being on a FaceTime call with the realtor and going, ‘wait, this doesn’t look like a third of an acre.’”

They applied together in tandem to Avimor’s Design Review Committee for permission to have their fence lines moved down the hill, construct a retaining wall and fill in part of the slope with dirt to extend their backyard nearly to their property line, but emails provided by Merz show their application was denied by the developer. The email provided to BoiseDev did not give a reason for the denial. 

Now, the Merzs have hired former Idaho Lieutenant Governor and Attorney General David Leroy as legal representation in the hopes of getting Avimor to agree to the change so they can add to their backyard. A lawsuit has not been filed, but Leroy and Avimor’s legal counsel have exchanged letters, and Avimor is declining to comment on the issue due to the potential for litigation. 

‘Unheard of’ 

A plot map of the Merzs property provided by BoiseDev shows nearly a third of their property located beyond their fence line. It slopes downward from their back fence, leading into a natural area separating their home from another nearby Avimor street. 

Jessica Merz said when they asked about the land and the size of the property, they were given vague answers about it and told the developer maintained a portion of the land. 

“Part of the frustration with (Avimor’s) behavior is they cater to out-of-state buyers, and they play games and make people settle for pieces of your land,” she said. “It’s unheard of in any state that you don’t get access to your property.”

Avimor Idaho
The entrance of Avimor off of Highway 55. Photo: Margaret Carmel/BoiseDev

Hirai said the same thing about her home purchase in September of last year. She said when she asked about the location of her fence, she was told “we put that there for the views, and we take care of the rest.” She wasn’t sure what it meant about her property, but she needed the home sale closed, thinking she’d sort out the questions when she arrived with her son. 

She said when she went to the Ada County Assessor’s office to register for a homeowner’s exemption, a staffer there showed her the plot maps and explained that she paid property taxes on the whole piece of property, not just where her fence stops. 

“It’s not ten feet,” she said, describing the slice of land behind her fence. “It’s a lot. It’s a huge amount of property. The reason it became an issue is because I bought land, and if I ever go to resell that land, it’s not usable. I just didn’t understand that’s something that could possibly happen. How could you buy property and be told you couldn’t use that acreage?”

Avimor: Shape of slope, privacy led to fence location

Staff at the planned community have been mum on this dispute due to the potential for legal action, but comments a senior staffer made at a neighborhood meeting on the Merzs’ and Hirai’s project provide some insight. 

Brad Pfanmuller, Avimor’s land development project manager, addressed the two families and a handful of others earlier this summer to discuss the proposed backyard extension. During the meeting, one of the residents asked why the fences were not constructed along the property lines in the first place. BoiseDev obtained a recording of the meeting.

He said Avimor placed the fences in their current location not based on property lines, but after walking the sites and finding the “hinge point” where the fence would provide the most privacy for both the homes at the top of the hill and at the bottom. 

A view of the sloping properties behind the Merzs and Hirai homes in Avimor. Courtesy of Jessica Merz

“The fence would have been placed on the property line you would have seen right into their house, and they would have been looking right into your house,” Pfanmuller said. “…The property line is considerably lower than that, but if we moved that fence down below you’d look right into their house.”

In response to a question about why Avimor didn’t extend the backyards with will dirt like the Merzs and Hirai want to do in the first place, he said it is because Avimor did not truck in dirt from outside when reshaping the hillside for the development. If there wasn’t enough fill dirt from excavating the hillside, then the developer did not bring in more dirt to sculpt the hillside further because of added cost.

An audience member made a reference to Avimor’s decision being “all about the money,” but Pfanmuller dismissed the notion. He said if all of the backyards on the Merzs’ street had been constructed with extended backyards filled in with excess soil, the homes would have cost tens of thousands more to build. 

A brewing conflict 

Dan Merz had a meeting with Dave Englund, the Avimor HOA manager, about the fence line in May, according to a timeline of events and other documents provided to BoiseDev. 

At that meeting, the Merzs say they were told the area behind their home was a “greenbelt” and maintained by the developer as part of Avimor’s Firewise program. Their notes from the meeting say they were told there were several other properties like theirs in Avimor where the owners do not use their full lot, and they signed away the rights in the purchase agreement. 

The Merzs were then pointed to part of their purchase agreement with their signatures next to it that said “fences may encroach on either side of actual lot lines.” 

Avimor Idaho
A row of homes overlooking a pond in Avimor. Photo: Margaret Carmel/BoiseDev

On May 16, the Merzs and Hirai submitted a form to the HOA, which is run by the developer, to extend their backyard and build a 4-foot tall rock retaining wall twenty feet from their property line due to a setback requirement. The Merzs said they would use the same rock featured throughout the rest of the community, so it matched.

On June 15, Dan Merz received a phone call from Englund with the news that the application to move the fence line and build the wall would be approved, as long as both Hirai and the Merzs completed the project at the same time. Englund also asked Dan to have the neighbors down the hill from the Merzs sign off on the project and to “convince them” about it, according to a recording of the phone call provided to BoiseDev.

“If the guy directly behind you goes ‘no way,’ then we’re going to have issues,” Englund said in the phone call. “We need to get them all.”

The Merzs say tensions escalated from there, with the homeowners down the hill raising a lot of questions about the project. By June 23, Dan felt like he should work with Avimor development staff Brad Pfanmuller on getting the application approved, and a neighborhood meeting was called with nine nearby homes. 

Encouraging signs before ultimate denial 

A recording of a June 23 meeting between Dan Merz and Pfanmuller provided to BoiseDev indicated the developer was likely to approve the proposal. 

During the meeting, Pfanmuller told Merz Avimor hoped requiring a neighborhood meeting to discuss the proposal would keep tensions in the community down and prevent neighbors from involving the Ada County Commission. He alluded to neighborhood issues being brought before the commissioners before, including in one case where development was stalled for months while meetings continued. 

“I completely agree with you, the wall is going to look better, and the fence is going to look better, but that’s my opinion, and that’s your opinion,” Pfanmuller told Merz during the meeting. “But they need a place where they can say something or talk to you about it, instead of just ‘I’m going to do this because that’s what I’m going to do.’”

He then told Merz the application would either be approved or approved with modifications by the design review committee. When asked if the neighbors could say anything to get the Merz application denied, Pfanmuller said, “I don’t think there’s anything.” 

A view of the back slope of the Merzs and Hirai backyards. The orange tape denotes their property line. Photo: Margaret Carmel/BoiseDev

Merz expressed frustration at the extra requirements for a neighborhood meeting, noting the land was his property he purchased, and he planned to spend $60,000 to extend the yard. 

“It feels like an invasion of privacy that I’m being required to do this,” Merz told Pfanmuller. “I tried to meet with (the neighbors), and they make constant demands. I left California to get away from that because I believe in the freedom of Idaho.”

Pfanmuller told him a neighborhood meeting would be scheduled and encouraged him to “not get riled up”, allow the neighbors to say their thoughts, and move through the process. He corrected himself, noting the approval wasn’t official until after the meeting and the design review committee, made up of three homeowners throughout the community, voted on the proposal. 

The meeting occurred on June 28. Several neighbors came and asked questions about the project, according to a recording of the meeting provided to BoiseDev. The questions ranged from the specifications of the project to concerns about the engineering on the slope stability and inquiries about what specifically the Merzs would be doing with their newly extended backyard. 

During the meeting, Pfanmuller pushed back on one attendees’ request for an outsider engineer to be required by Avimor to come in and evaluate the contractor’s plans and publicly signaled support for the project. 

“There’s been a lot of other people that have come in with proposals that we do make them jump through hoops, and they don’t get to this point,” Pfanmuller said at the meeting. “It’s something (the Merzs and Hirai) would really like, and we feel like it would be a good addition to that area, at least landscape-wise.”

On July 11, the Merzs and Hirai received word from Englund that their request for the backyard extension was denied. There was no reason or potential remedy given in the email announcing the decision. 

“Multiple factors were considered, including onsite visits by the committee members to review,” Englund wrote. “I know this is not what you want to hear, but the decision has been made.”

Enter the lawyers 

The Merzs hired legal counsel, hoping to get a different answer. 

Their first attorney, Kyle Grigsby, sent a letter on July 26 to Avimor requesting the developer to provide a written decision reconsidering the application to extend the Merzs’ backyard by August 5. In the letter, Grigsby alluded to the plans for legal action and outlined the law requiring HOAs to follow their own guidelines and not discriminate against homeowners whose projects meet the design guidelines for their subdivision. 

“The Merz application also carefully complied with application requirements,” Grigsby wrote, along with other objections to Avimor’s application review process. “Where the Merz application is not deficient, there is not a basis for the design committee to deny the application. Throughout the development, residents have routinely filed applications to adjust their fences and similar property features. The Merz (sic) are not aware of any denials and are aware of numerous approvals of substantially similar applications.”

No response came from Avimor until mid-September, after the Merzs hired Leroy to represent them instead. 

The letter from Avimor’s lawyer, Jason Blakely, with Givens Pursley, denied their request to overturn the design review committee’s decision on the backyard extension, according to a copy provided to BoiseDev. Blakely argues that the Merzs claims that their project complies with Avimor’s Design Guidelines is moot because Avimor’s Charter gives the developer the ability to “consider any factors it deems relevant.”

“In light of the broad discretion granted to the reviewer under the charter, the Merz (sic) have no legal position to pursue,” the letter said. “Without acknowledging the document that governs this dispute, the points made in Mr. Grigsby’s letter are inapposite. Should the Merz (sic) pursue litigation, Avimor will seek to recover its attorney’s fees.”

In response, Jessica Merz said Avimor’s HOA overstepped its boundaries.

“Avimor’s attorney letter made it clear to me that regardless of following all of the community guidelines they still ‘reserve all rights’ to my land, which I have a deed on,” she wrote in an email. “This is not the role that is or should be of an HOA; they can determine what we reasonably can put on our land but not deny us access or use of our land. I think the residents of Eagle should be aware that Avimor promises one thing and does another to the detriment of the homeowners in this community just as they will when annexed to Eagle.”

BoiseDev Project Tracker
Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel is a BoiseDev reporter focused on the City of Boise, housing, homelessness and growth. Contact her at [email protected] or by phone at (757)705-8066.

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