Covenants Not Aging Well - Trees

Hopefully this will help both new communities developing covenants and existing communities that may find themselves needing to rewrite certain covenants. I'll try not to write a book but the situation is a bit complicated.

I live in a community with a POA that was established over 20 years ago. The community has 5000+ homes (multi-family townhomes to residences on estate lots) developed in stages with several lots currently remaining undeveloped. To complicate things certain subdivisions have additional POA boards with specific covenants and different management companies (this creates a bit of confusion for homeowners, who approves). I am the original owner of the property and fall under the Master Association for approvals.

When our house was built, in 2001, the builder gave us the option to preserve trees on the lot. We had instructed them to keep healthy trees that were not going to be in violation or a danger to our property. They kept 3 Water Oaks and added three Magnolias and three crepe myrtles so I have a total of 9 trees on a 10,400 sq foot lot bordering a pond (some of lot is submerged, covered by house/driveway, subject to 70% grass rules and 10' setback rules). Most Lots in my subdivision have significantly fewer trees in most cases 3 -5, a mix of ornamental/palm and hardwood. I have two water oak trees that need to be removed, one is effecting my slab and based on distance from house POA was forced to approve. The other tree's diseased and is slightly too far removed from house to be a forced approval so I had to go to the architectural review meeting to get approval for removal was denied for insufficient evidence (attached photo shows issues). Water Oaks are one of the more dangerous trees to have near a home in the event of high winds (Hurricanes, am in Florida) and this tree is diseased and the neighbor had all the limbs taken off on their side so there is a legitimate risk of it falling into our house, specifically the master bedroom, risk of property damage and loss of life.

Here is the verbage on "trees" from our POA.

"A POA Tree Removal Arborist Report must be completed by a ISA certified arborist for all living hardwood trees four inches (4”) or greater in
diameter at breast height. If a tree is closer than ten feet (10’) to the house or is clearly dead, the resident must contact the ACC Coordinator
for documentation of its condition. An Arborist report is not needed if the tree(s) to be removed are clearly documented dead; ten feet (10’) or
closer to the house; or the removals are needed for property improvements such as home additions, pools or patios. Tree Removals must be
approved through written application to the ACC; Trees should be planted at least ten feet (10’) from the eave of the house; All stumps must
be removed; All hardwood trees, regardless of reason for removal, must be replaced with another hardwood in general proximity to the
removed tree, Location of replacement trees will be reviewed by ACC. Tree Restoration will be established for all removed trees. The removed
tree diameter will be measured at approximately four-and-a-half feet (4.5’) in height to establish the Tree restoration inches. All replacement
trees will be measured at four-and-a-half feet (4.5’) in height and should generally be equal to or greater than the established Tree restoration
inches. The ACC may consider multiple replacement trees to meet the Tree restoration inches. Alternative trees will be considered on a caseby-case
basis; the trees must be consistent with the overall aesthetics of the community and blend with the surrounding neighborhood."

In addition it states elsewhere in covenants that 70% of the property in front of the house must be grass.

So here's the issue I have, the two trees I am removing are hardwood thus must be "replaced". The one tree measures 21" in diameter the other 24" so it would be impossible to plant another tree the same diameter and I do not have enough land to plant multiple trees that would add up to those totals (neither side yard exceeds 10 feet distance). Even if they only require me to plant two smaller trees it is going to be difficult, the side yards are unplantable and it will cause me to violate the 70% grass rule if I plant any in the front yard (beds and 5 trees there already) and I have no room in the back (two now huge magnolia) other than the location of the diseased tree and I will have to fight the root structure to just plant one tree.

I will incur a $1,000 fine if I remove the diseased tree without prior approval, if by some miracle they approve it, I then risk another $2,000 in fines if they don't approve me planting only 2 smaller trees. If they approve planting the smaller trees, I risk another $1,000 fine by planting it in my front yard and potentially violating the 70% rule. So the choice I have is to pay a $1,000 - $2,000 fine or sue the association at that point. I am inclined to sue simply to have the covenants changed to something more reasonable and reflective of a community with mature trees.

The takeaway is when writing covenants, they need to stand the test of time and have realistic attainable goals. I am basically being punished for conserving trees when the house was built, I would be in a much better financial situation had I just let the builder raze the lot and put in the minimal number of trees required. In addition if the diseased tree falls and creates property damage and/or loss of life the association is open to a lawsuit by the homeowner and/or their property insurer.

Takeaway for POA Rules
1. Set a # trees per plantable square foot rule and only enforce replanting in the event that removal causes a homeowner to drop below the calculated trees for their lot. (this is a much more realistic rule for communities with varying lot sizes, topography)

2. Set a recommended replacement tree size, be it in diameter/gallons but something reasonable. For new communities this will encourage retaining existing trees at the point of development and will avoid future issues with the covenants being unattainable by homeowners.

3. Reduce liability of lawsuits by offering alternatives when giving a denial. Consider a minor $ "tree removal fee" for those denials where the homeowner argues that it is dangerous with a waiver if evidence is present post removal that shows disease.

Yes

I really wanted to post this more as help for POA/HOAs that need to establish or change covenants. I'm prepared to deal with this to resolution but I appreciate your advice.

I think in the case of my community they just didn't have the foresight to realize that certain criteria and requirements would become virtually impossible for compliance.

Your developer is probably to blame for establishing the rules this way. We have a lot of trees in my community as well and some of the older residents told me the developer claimed lots and lots of trees wouldn't only make the community more attractive, but it would also help with utility costs. That's true, but the developer also put many of the trees too close to the building and so by the time the trees came to maturity (when they'd be long gone), the root systems begin causing all sorts of problems with sewer backup. Our community has the old clay tile pipes and it's nothing form tree roots to grow through them.

In your case, I would suggest you request an appeal before the architectural committee, but before you do, hire a tree expert to come take a good look at your property and the trees, then ask him/her to attend the appeal hearing with you. That person can make a presentation further explaining why you need to do what you do - it may be some of the members simply don't know (or want to accept) that not every tree is appropriate for every community.

You do make excellent points about CCR revisions. All homeowners (including the ones who serve on the board and advisory committees) need to understand that CCRs (and bylaws for that matter), aren't set in stone and they shouldn't be. Times change, communities change, and local, state and federal law also change, and every once in a while (perhaps every 5-10 years or so), someone should take a good look at the governing documents and determine what can be dropped, ammended or added.

I also think people should remember CCRs can't and won't address every single situation that comes across HOA living (they'd become too difficult to read and most people don't read what's already in front of them!) Some people come to this website asking questions that sound a lot like they and/or their board of directors are nit-picking. Not everything has to be legislated - sometimes it's a matter of people taking a breath, using their head for more than a hat rack and applying common sense instead of being obsessed with being right because "it's my house, dammit?!" or "we are the board, and therefore we are." Board resolutions should be able to flesh out the CCRs without writing something to try and supersede them (because the association would probably lose in any legal proceeding). They should also be reviewed periodically for addition, amending or even subtraction.

Geno - have you looked into the Florida Friendly Landscape Act? Anything helpful there?

Yup. Two years ago, one of the older homeowners came to a meeting, hopping mad about the board's decision to cut down "his" tree. The tree roots were beginning to wreck the foundation, but he was more upset that the tree was coming down. During the discussion, I told everyone what I'd been told about the history of the trees in our community and then reminded the guy that while trees are great, the Board has a responsibility to the entire community. Foundation damage can cost hundreds of dollars, more if it extended to the house next door or behind (I'm in a townhouse community). If it got to the point that assessments would have to increase to help deal with the ensuing repairs (which they eventually did), he'd be yowling about THAT.

In the end, the board took another vote and decided once again to cut the tree down, but they would replace it and the homeowner would be able to pick the tree (from a board approved list, as it had also hired an arborist to evaluate the entire community on this stuff.) After all that yelling (and his wife once standing in front of the tree so the contractor couldn't get to it - she was persuaded to move by our security officer), these two eventually moved out.

When I on the board, it always amazed me that people thought nothing of everything else going up in price, but would raise holy hell when it came to assessments. I guess they think years and years and years...and years of rain, snow, wind, occasional hail and whatever else Mother Nature came up with, not to mention more years of simply living in the building wouldn't take its toll.