Covenant Violation

I was recently elected to our board and accepted the position of Vice President.We currently have a Covenant violation problem that I hope you can assist me in resolving.One of our home owners has planted an excessive amount of bushes,trees, and plantings in front of his house as well as in the drainage swale and on both sides of his house starting from the front curb to the back of his house. Many of his neighbors have complained to the board that these plantings are an eyesore and do not conform to the "norm" of the development.These complaints were presented to the old board many times over the last two years and were never acted upon. Our covenants restrict "mass plantings and hedges" and also restrict planting in drainage swales as well. We notified the homeowner that he is in violation of our covenants and asked him to remove a majority of the offending plantings. He has refused our request and stated that the covenants are ambiguous and demanded that we define "mass plantings". He claims that he interprets the covenants differently than we do and that we are in error. He also states that the old board had no problem with his house due to the fact they made no official complaint and feels he is "grandfathered" into allowing him to keep his property as is. Our covenants and By-Laws do not specify how we can resolve the matter and do not specify any fines or actions we can take. Does the board have the power to define violations as to their meaning as long as they are fair,equitable and "normal" according to the feelings of the community and the board? If so,will we have legal ramifications if we try to enforce these violations based on our interpretation? I have included a partial copy of our present covenants for your perusal and hope you can help me resolve this issue. Thank you for allowing me to join such a great organization and for all your intuitive advise and info you have provided me while viewing your posts and replies.

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
The Declarant herein hereby covenants and declares that the said development
knows as XYZ Homeowners Association INC shall be held,
UNDER AND SUBJECT, NEVERTHELESS, to the following covenants,
agreements, conditions, reservations and restrictions:
1. These covenants, agreements and restrictions are to run with the land and shall
be binding upon the Declarant, its successors and assigns, and all persons
claiming under them, until December 4, 2013 at which time said covenants,
agreements and restrictions shall be automatically extended for successive
periods often (10) years each, unless the then owners of more than (67%) of
the said lots terminate them in whole or in part, by appropriate instrument
duly executed and recorded.

14. No hedge or similar mass planting shall be erected or permitted except to the
rear and side of the main house structure.

15. No waterway, wetland or storm drainage area shown on the plot of the
development shall be filled in for any other purpose. The elevation of a lot
will not be changed so as to materially affect the surface elevation or natural
drainage of surrounding lots.

Homeowner has indeed planted what we feel are "hedges" in front of his property. They extend over 80 feet from his driveway to his front door and at this time are over 3 feet in height. As for the swale issue he has planted bushes in the swale starting from his culvert pipe starting at his driveway to over 200 feet across his property to his neighbors culvert pipe. Our problem is the covenants do not describe what a hedge is. His defense is "describe the true meaning of a hedge as regards to what the covenants say" It's easy for me to say "if it walks like a duck and quacks like a duck it must be a duck" but will that prevail in court? The rest of the community is very lovely with beautifully maintained lawns and landscaping. His property truly is an eyesore and is the first thing you see when you enter the community. We may be able to get our county environmental agency to order him to remove the bushes from the swale since it is a violation to disturb and disrupt the flow of drainage water but that will take some time and effort. Things move real slow in Lower Slower Delaware.

Robert,

Thoroughly review your CCRs to look for a provision that gives the BOD the authority to interpret the CCRs. This is common in many HOA CCRs. Then I would suggest the BOD adopt a definition of "hedge". Don't be afraid to let this member know that it's up to the BOD to define, not him!

As for planting in the drainage swale I think your covenants are quite clear that it is only to be used for drainage, meaning it is not an area to be landscaped. Why he would want to plant anything in that area is a mystery to me. Property owners should always be concerned with the drainage on their property.