Design Review Committee vs CC&rs

These two different sections are from the CC&Rs. Notice the parts that have to do with landscape issues.

First Section
“The Design Review Committee may adopt, amend and repeal architectural guidelines, standards and procedures to be used in rendering its decisions. Such guidelines, standards and procedures may include, without limitation, provisions regarding: (a) the size and height of Residences: (b) architectural design, with particular regard to the harmony of the design with the surrounding structures and typography; (c) placement of Residences and other buildings; (d) landscaping design, content and conformance with the character of the Property and permitted and prohibited plants; (e) requirements concerning exterior color schemes, exterior finishes and materials; (f) signage; (g) perimeter and screen wall design and appearance; (h) time periods for commencement and completion of any approved construction or modification; and (i) rules and regulations governing construction activities. Any adoption, amendment or repeal of the Design Guidelines after the Declarant no longer has the right to appoint the Design Review Committee must be approved by the Board.”

Second Section
“Each Lot Owner shall be responsible for maintaining, repairing and replacing the irrigation system and for the cost of irrigating the trees within the Tree-Line Area adjacent to the Owner’s Lot in accordance with standards established from time to time by the Association. If a tree dies, the Owner of the Lot must promptly replace the tree with a tree of the same specie and the replacement tree must be at least a 36” box tree.”

When I read the first section, I believe it says the Design Review Committee can make standards about how the landscape design is to be completed. However, when I read the second section I believe it says that for one particular area (called the Tree-Line Area) that if a tree dies it has to be replace with same type of tree and a certain size.

The question is can the Design Review Committee make a rule that changes the type of tree if there is reason to believe that tree type is poorly suited for the area (a mistake in landscape the first time around? Since both are from the CC&Rs wouldn’t an amendment to CC&Rs be required to allow someone to plant a different type of tree, even it was a much better choice?

I would say, no.

Why?

Because the DRC can make rules that change architectural guidelines, which are different from CC&R specifications. So it doesn't appear to me that they are given the ability to alter CC&R specs, which the tree thing appears to be.

To me.

The easiest thing to do would be to create an amendment that gives them the authority to specify type and/or size of replacement trees in the Tree-Line Area (whatever that is).

One minor thing that makes this messy, the name of the area is based upon the tree. For example, one section is called Maple Grove. If the maple tree is to be replaced by an Elm (with a very relaxed interpretation of the rules) then there is now a section called Maple Grove that really is a grove of Elms.

However, we may just have to live with what works.

I would agree that any guideline must now be approved by the board. However, the type of tree is not a guideline, it is statement in the CC&Rs. To me, guidelines are all those details that clarify how the landscaping is done and what should be done when the CC&Rs don't specify, like what color of rock is required.

Had there not been the second section in the CC&Rs then this would not even be a question as the board could just change the guidelines.

Mary, except that there exists a CC&R that covers a landscaped are (Tree-Line Area) over which any discretion or guideline is not allowed.

If these indeed are specific tree areas, so named, Maple Tree Grove, and Elm Tree City, and the CC&Rs state that only the same type of tree can be replaced in those specific areas, then that is not a "guideline" on plants, that is a specific CC&R designating what can and can't go there.

There is no discretion and the type of replanted tree cannot change, until an amendment is made to that section of the CC&Rs.

IMO.

Michele,

I disagree. The provision of the CCRs states the Design Review Committee shall have the authority to adopt, amend or repeal guidelines for: " landscaping design, content and conformance with the character of the Property and permitted and prohibited plants;" The CCRs do not specify the type of tree only that the tree must be of the same species. Only the Design Review Guideline specify the type of tree and those guidelines can be "adopted, amended or repealed" by the BOD. IMO, only the design guidelines would have to amended to state a different specie of tree.

Mary, help me understand your logic since others may have the same thoughts. Why wouldn't the second section of the CC&Rs be a clear definition of what is to be done specifically with the tree in a very specific area? Then anything else to do with landscaping would come under the guidelines.

No, Mary, it's not the same as the landscaping covenant. So it's not contained in the design review guidelines, it's contained in the CC&R by specifying the Tree-Line Area, and apparently, from the OP, Tree Line Areas have specific tree species in each one, Maple in one, etc etc.

The Tree-Line Area is a specific area with a specific function, and is specifically addressed is a separate covenant from the general one addressing the Design Review Committee. The "same" tree replacement requirement addresses a species of the Tree Line Area within which the tree died or was removed.

The Tree Line Area is not covered by the Design Review Committee and apparently it was "special" enough to deserve its own "section" in their CC&Rs.

It does not fall under the venue of the Design Review Committee, except as far as certain "standards" go from the Association. Notice not "guidelines," but standards specific to the Tree Line Areas.

So in effect homeowners have general landscaping that may or may not be controlled by Architectural guidelines, and separate "Tree Line Areas" that have specific replacement requirements.

Covered in two separate sections of their CC&Rs.

It would certainly be easier to handle it under the DRC, but it would be wrong. And were I a member of the association, if they tried to do that without an amendment, I would challenge it.

Mary, however the trees came before or at least the same time as the CC&Rs. So if the original tree was a Maple, then the tree to be replaced must be the same (per second section). I would agree, that if the tree wasn't there in the first place, then the guidelines could say what it is. However, the original tree (and the original guideline) was a Maple. IMHO if you change the tree midstream, then it is not of the same specie.

We are all just interpreting what was provided so here is mine.

first Section states "Any adoption, amendment or repeal of the Design Guidelines after the Declarant no longer has the right to appoint the Design Review Committee must be approved by the Board". Has the Declarant turned over? If so the Design Guideline which includes the developers landscape plan presented to your city or county for approval at the intial construction can now be changed if the board so chooses in any way it so chooses.

second section states "If a tree dies, the Owner of the Lot must promptly replace the tree with a tree of the same specie and the replacement tree must be at least a 36” box tree.” To my mind and dealing with this regularly with bad landscape design as mentioned by others does not preclude the first statement. Second statement does not in any way state what the trees must be ie. Maple, Elm, Oak, Ash, only that if a tree in that "Tree-Line Area" dies it must be replaced with like kind and the standard for that replacement and maintenance shall be set by the board.

IMHO and how I would interpret this would be that the intent of the original design was to have tree lines of same specie tree or alternating trees or some other design based on specie height lets say. It was the vision of the original developer and landscape architect only and the second section is their attempt to retain their personal vision and stamp on and for the community and preference in trees. If there has been shown that say ash trees do not do well in a tree line for "any" reason and that tree-line consisted of 12 trees, the board could conceivably change that tree-line to be oaks and any replacement would neeed to be an oak. that is if the board wanted to maintain the same look and style of landscape as was originally invisioned by the developer and landscape architect.

Michele,

I agree that it's clear that the CCRs specifically state the tree line trees can only be replaced by the same species tree. That doesn't mean those trees cannot fall under "landscaping" guidelines contained in the design (architectural) guidelines. However, the only thing concerning the tree line trees that would be outlined is the type tree that must be planted. IMO, the type of tree should be stated somewhere and since it's not stated in the CCR, then it should be in the design (architectural) guidelines. And, because the CCRs do not state what type of tree must be planted, the Design Review Committee has the auhority to amend that provision.

I don't like splitting hairs either, but it was you who said guidelines and standards are two different things.

But, I don't want to appear that I'm arguing with you Michele. Frankly, I enjoy hearing other opinions; I find it interesting to note how others think. And because of it, I've been known to change my opinion a time or two. However. on this one, I think we'll just have to agree to disagree. OK? :-

I complete agree, we're not arguing, we're simply disagreeing.

Sometimes people can have only marginal disagreements. But in this case the disagreement is 180-degrees apart. (Trust me, my husband and I have more than a handful of those type!)

I believe that the Tree Line Areas trees are specific in that there are different Tree Line Areas throughout the development, and they have specific trees within their areas (Maple Tree Tree Line Area, Oak Tree Tree Line Area, et al). As a result then the CC&Rs are perfectly okay saying that they must be replaced with the same species that exist in that Tree Line Area, without having to enumerate each and every one that exists. It would be redundant to list each variety or species when all that's really needed is to say that they must be replaced by the same type.

To me it's very clear that the two sections address landscaping as general landscaping and the Tree Line Area as a separate special area. The DRC, in my opinion, cannot override the requirement in the CC&R that specifies what the replacement must be. To make that change, in my opinion, would require a CC&R amendment.

It would seem to me that the board and the DRC might be able to make a very persuasive argument to the residents as to why the change/amendment should be made, and I cannot imagine, that being the case, that the community would not vote for the amendment. But I would really put up a huge fight if the board tried to dismiss or work around the CC&R with just a board vote. To me, the CC&R section on Tree Line Area requirements is not in the least bit ambiguous and making changes to it without a legitimate amendment would be over-reaching.

No, I still respectfully disagree.

I still firmly contend that the CC&R on that section would need to be amended to allow the DRC to change the species of the tree.

The section was very clear.

Guess this is where we leave it!