Fences

Started by SallyS2 • 17 replies • 2178 views

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SallyS2 (Oregon)
Posts: 36

Posted:

In our CCR's our fence rule is 6' to use as a lot line barrier or you may
use a hedge but it must also stay at 6'. Our problem is a new pres. who is
trying to use this height rule to apply to our solid screen of cedar trees.
These trees are planted 4' inside of our wood fence that we choose to be the
lot line barrier on the back and 2 sides of our back yard . We have a street
that runs behind our back yard. So privacy and noise blockage is very
important. His arguement is the 6' rule was to preserve home owners views.
There is nothing in the CCR's that restrict any landscape or even mentions
views . The only thing would be blocking pedesterins is fron peeping into
our home. Our CCR's don't protect views because there really aren't
any.Your help or ideas would be welcomed. He has a good number of homeowners
mad. He imposed a $250.00 fine on us and is going after others too. We feel
power probably isn't his best suit since he has bullied one owner into tears
over this Thanks for any help you could send Sally Savidge

Sally Savidge (Oregon)

MicheleD (Kentucky)
Posts: 4,491

Posted:

Please provide the exact wording of your rules and regulations as well as your CC&Rs about the fencing/hedges issue.

But from what I can read, he has no standing, nor does the board, and any fine is unenforceable.

Unfortunately, you may have to call their bluff and actually get an attorney to help you out.

Frankly, it would be well worth the expense to me.

He can argue his "interpretation" of what the 6' rule was "intended" to be for in front of a judge, as far as I'm concerned.

He has absolutely nothing to back that up without it being in writing.

In our HOA a 6' maximum height exists solely because that is the MAXIMUM height a FENCE can be per our local metropolitan area's zoning restrictions.

TREES are not "hedges" so he has absolutely no jurisdiction over your cedar trees whatsoever, if your documents are as you say and don't restrict landscaping, other than the HEDGE maximum height requirements.

The BOD appears to have overstepped its authority, but the only way you may be able to deal with it is through either court-ordered arbitration or an outright lawsuit.

With luck, when your attorney sends the notice to the BOD of your intent to file the suit, they will turn it over to the Board attorney who will recommend to them that they have no authority to either restrict your trees OR fine you for not removing them.

SallyS2 (Oregon)
Posts: 36

Posted:

Here is the CCR in question , Thanks for your imput
5.06 Fence. No fence shall exceed six (6) feet in height from the finished lot grade on the highest side. In no event shall side yard fences project beyond the front walls of any Residential Unit or other dwellings or any garage, except as allowed by the Architectural Control Committee. Prior to construction designs of all fences must be approved in writing by the Architectural Control Committee. Fences along Cherry Park Road that have been installed by Declarant must be keep in good repair, and the design of the fences may not be changed. Lots affected are Lots 23-39 and Lots 10-22.

SallyS2 (Oregon)
Posts: 36

Posted:

sorry I cut off part
5.06 Fence. No fence shall exceed six (6) feet in height from the finished lot grade on the highest side. In no event shall side yard fences project beyond the front walls of any Residential Unit or other dwellings or any garage, except as allowed by the Architectural Control Committee. Prior to construction designs of all fences must be approved in writing by the Architectural Control Committee. Fences along Cherry Park Road that have been installed by Declarant must be keep in good repair, and the design of the fences may not be changed. Lots affected are Lots 23-39 and Lots 10-22.

Hedges or other solid screen planting may be sued as lot line barriers subject to the same height restrictions as fences. No building wall, fence, paving, landscaping or construction of any type shall be erected or maintained by any Owner of a Lot so as to trespass or encroach upon the Common Areas.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Okay, well, I'm afraid I have to take back some of what I said.

You really should consult an attorney, but it appears that the HOA may be correct about this.

For one thing, by your own admission, you state the following:

" . . . our solid screen of cedar trees. "

Well, that is contrary to what the CC&Rs allow:

"Hedges or other solid screen planting may be used as lot line barriers subject to the same height restrictions as fences."

Here's the thing, the Cedar Trees are clearly not being used as lot line barriers, so if I were you I would simply refer to them as elements of your backyard landscaping design to avoid any confusion.

The design may give you a bonus that it "screens" various noises, views, etc, but I would not muddy up the discussion by referring to them as that.

They are not lot line barriers, they are not hedges, they are not a fence or can be confused with fencing.

They are elements of your backyard landscaping design.

Period.

Therefore not subject to BOD/HOA control and not subject to a fine.

But you will very likely need an attorney. It would be worth it to me.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Opps. SOrry for the uber-underlining!

SallyS2 (Oregon)
Posts: 36

Posted:

We've made it very clear the trees are our landscapping. Also we already have a fence as our lot line barrier. If you note the whole rule is about lot line barriers and what can be used for it. I mean how many lot lins do we need?

SallyS2 (Oregon)
Posts: 36

Posted:

Beings we are not the only one he is attacking we've called him about a public hearing and was told by him to let him know where and when ?!? He's the President it's his duties to arrange this

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By SallyS2 on 12/09/2009 8:40 PM
Beings we are not the only one he is attacking we've called him about a public hearing and was told by him to let him know where and when ?!? He's the President it's his duties to arrange this

Well, he's calling your bluff.

Arrange a "where and when" and see if he shows up.

But, again, I can't stress enough that you need to refrain from calling the cedars "our solid screen of cedar trees."

When you refer to them, always refer to them as your "cedar trees."

But please reach out to an attorney (one that also specializes in HOA matters, if you can find one) and have at least one meeting with him/her.

Usually an initial conference/consulting is free or reduced.

They generally don't start the meter, oftentimes, until an agreement is reached that they will work for you.

But I would tuck some $$$s away to fight this one.

Cedar trees are beautiful and way to expensive to hack down or mutilate to accommodate an over-reaching HOA.

HB (Oregon)
Posts: 143

Posted:

Do your CC&R's require you to complete an architectural review application for landscaping?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Sally,

Did you get prior approval (or need to get prior approval) for planting the trees?

What does your local zoning board say about trees?

What are your spite fence laws?

How long have the trees been there?

Time frame of the trees being there and complaints?

Does the HOA hold annual inspections? If yes, were the trees ever mentioned?

What is the hearing procedure for your Association? Have they followed it?

How much written documentation vs verbal documentation do you have?

Are all trees being targeted or just yours (and or a couple of others)?

Have you gotten and read minutes of the past board meetings to see how and when this issue came up?

I ask these questions because you need to be informed better than the Board when you go to the hearing. The President isn't just doing this on his own. He/She had to have some approval for it from other members.

Best advise:

1) Research - Research - Research.

2) Never, I say again NEVER, hint or mention legal action unless you are planning to go through with it. Most Boards can shut you down at the mention of it - cut off all access to records and make you go through their attorney just from a possibility of pending legal action.

Tim

MaryA1 (Arizona)
Posts: 7,043

Posted:

Sally,

Even with a fence behind the trees, the trees could be considered a lot line barrier because they are planted against the fence. You may have to consult with an attorney on this one.

Regarding the actions of the Pres; you know he's only one member of the board and he alone cannot make decisions for the BOD. What do the other board members say about this? If he said he will attend a meeting arranged by you then call his bluff and set up a meeting.

Because the CCR restriction is somewhat ambiguous I can see where an amendment might be the best course of action. We have walls in my HOA and also have the 6' rule. However that does NOT apply to trees. IMO, if there are no views that must be protected, there should be no limit on the height of trees, even those that would qualify as lot line barriers.

SallyS2 (Oregon)
Posts: 36

Posted:

Sorry I've taken so long to respond but the holidays are sneeking up on me. There is nothing , that's why we believe hes trying to use the fence rule cause thats the ONLY CCR even mentioning any kind of height resriction except homes can only be 2 1/2 storys ect.

SallyS2 (Oregon)
Posts: 36

Posted:

Tim there is no prior approval needed for any landscape project any where in our CCRs 2. I've spoke with our Senior Planning Comm. and the city fence code is the same as our CCR except on corner lots where it's 3' clear view code for driving safety ect. Their opinion of this was our landscapping has nothing to do with useing it also as a propertyp line. 3.What is a spite fence? 4.Our trees were planted 4 yrs and 2 or 3 Presidents ago. 5. NO complaints except from him. 6. No annual inspections are ever held. 7. 1 board meeting was held without us being asked to attend, we have 4 board members and 3 Arch. Commitee members.2 of the board are reps of a shopping center and an apartment complex, and have admitted to me they don't get into residental issues. The Arch. comm. do not have a vote in these issues. He stated his case to 1 other board mem. and the 3 arch mem.the mention of hedges was a way to protect views. He states over and over that to him the CCR being at 6' was intended for view protection. Our Senior Planning comm. told me along with our city code enforcement comm. that 6' fences or 8' for bussinesses are codes because of wind issues . This code runs state wide. 8. We asked for him to arrange the meeting and he hasn't contacted us since. There is a couple of other H.O.A. members that also asked for a meeting and he han't even called them. 9. We have documented this very closely and have e-mails from him citing the view issue, also e-mails from other owners about there issues. 10. His target on us are abuot trees ,but most others are arborvitas propably as tall or taller than our trees.11. We asked for a got all minutes of meetings since he took office last June or July. 12. Law suits have been mentioned by many, some have talked about going after him from not acting in the best or any intrest of the Asso.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Again, he can "interpret" the 6' height restriction as being for "view protection" all he wants. He didn't write the covenants, and if there is nothing in the covenants stating WHY, then he has to deal with it.

Or make his case in front of a judge (or arbitrator) explaining why he decided to fine and demand removal of items over which he has no enforcement jurisdiction whatsoever.

If you have had these trees for 4 years, then they have gotten some growth on them. I don't know the life cycle of a cedar, but these would be fairly mature trees by now, wouldn't they?

SallyS2 (Oregon)
Posts: 36

Posted:

Hi Michele Yes these 24 excelsa cedars are mature, the oldest along the back of the yard are close to 20' and the rest are only a few feet behind. We wanted and have a beautiful tree lined park for our grandchildren, St' Bernard and Great Dane to play in. The reason we choose these over other cedars was for the height (20-25') and width (8-10') these trees will reach. We planted them only 4' apart as directed by the nursry to stunt their growth also. They are planted 4-5' inside our property line fence. But we also have plans to keep them at their present size by shearing instead to topping. He had the asso.landscapers look at them by driving by one day. The landscapper told him they were Western Red Cedars which will reach 50-80' tall and 20-30' wide. After I found out about this I informed the landscaper of the true type of cedar and he stated he really didn't inspect them he and the Pres. just drove by. Trust me this is just some of the stupid things we've put up with. We have spoke with our attorney and he's ready, we prefer to end this at the meeting along with the rest of the owners affected by this.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By SallyS2 on 12/10/2009 10:56 PM
Tim there is no prior approval needed for any landscape project any where in our CCRs 2. I've spoke with our Senior Planning Comm. and the city fence code is the same as our CCR except on corner lots where it's 3' clear view code for driving safety ect. Their opinion of this was our landscapping has nothing to do with useing it also as a propertyp line. 3.What is a spite fence? 4.Our trees were planted 4 yrs and 2 or 3 Presidents ago. 5. NO complaints except from him. 6. No annual inspections are ever held. 7. 1 board meeting was held without us being asked to attend, we have 4 board members and 3 Arch. Commitee members.2 of the board are reps of a shopping center and an apartment complex, and have admitted to me they don't get into residental issues. The Arch. comm. do not have a vote in these issues. He stated his case to 1 other board mem. and the 3 arch mem.the mention of hedges was a way to protect views. He states over and over that to him the CCR being at 6' was intended for view protection. Our Senior Planning comm. told me along with our city code enforcement comm. that 6' fences or 8' for bussinesses are codes because of wind issues . This code runs state wide. 8. We asked for him to arrange the meeting and he hasn't contacted us since. There is a couple of other H.O.A. members that also asked for a meeting and he han't even called them. 9. We have documented this very closely and have e-mails from him citing the view issue, also e-mails from other owners about there issues. 10. His target on us are abuot trees ,but most others are arborvitas propably as tall or taller than our trees.11. We asked for a got all minutes of meetings since he took office last June or July. 12. Law suits have been mentioned by many, some have talked about going after him from not acting in the best or any intrest of the Asso.

Sally,

Sounds like your well prepared. Good luck and keep us posted.

Tim

MaryA1 (Arizona)
Posts: 7,043

Posted:

Sally,

I wouldn't hurt for you to start talking to the other board members. As I mentioned earlier, he is only 1 board member and he does NOT have the authority to make decisions w/o a majority vote of the BOD. IMO, even if he has interpreted the CCRs to also apply to trees planted along the lot line, if athis interpretation is not in writing and agreed to by a majority of the board then it would hold no weight in a court case. Let the other board members know that you are prepared to take this to court if necessary and the whole board will be a part of the lawsuit. Also mention the cost to the assn of a lawsuit. I'll bet they won't like hearing that. And, ask all the other members who are upset with this new policy to also talke to the other board members. They may get the message and decide this guy really isn't suited to be the Pres.

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