#424-O, Bluefeld v. Fallstone Homeowners Association, Inc. (August 16, 1999) (Panel: Reilly, Kristian, Price)

The homeowner (HO) filed a dispute appealing a decision of his homeowner association (HOA) ordering him to remove two potted fruit trees from his deck.

The evidence at the hearing showed that the HOA Declaration provided that "vegetable gardens shall be maintained only in the rear yard of any lot and shall be maintained in a neat and attractive manner."  The HO applied for permission to place 11 large plastic containers on his deck for vegetable and fruit gardening, and the HOA denied this application on the grounds that a deck was not a "rear yard".  The HO submitted more plans for planters on his deck, none of which were approved.  Finally he installed 4 large containers, each measuring 16 square feet, on his deck for plants and a 5th for composting.  The HOA send him a notice demanding he remove the 4 containers in which he had planted trees, and later the HOA board voted to impose a fine of $250 if the HO failed to comply.  The HOA said that fruit trees attract bugs, birds and rodents, and that HOA policy allowed on the planting of shrubs and trees on decks which were no more than 3 feet taller than the deck railing, and that planters could be no larger than 9 square feet.  An expert landscaper testified that potted plants placed on a deck were not considered "landscaping".

The hearing panel noted that the HOA could not produce any written rules limiting the heights of trees on decks or of the maximum sizes of planters.  The panel held that the deck, located at the rear of the house, was part of the "rear yard of the lot" within the meaning of the Declaration, and it further held that the Declaration, by its own terms, applied only to vegetable gardening and not to fruit trees.  The panel further held that the potted trees were not landscaping and therefore not subject to the provision of the Declaration that gave the HOA power to regulate landscaping.

Finally, the panel held that the pots themselves were not "structures", within the meaning of the Declarations giving the HOA the power to regulate structures.  The panel reasoned, on the basis of law dictionary definitions and court decisions, that a "structure" was generally used to refer to something constructed as a permanent fashion or built in place so as to be permanently attached to the land or some other building.  These plastic pots, even if "constructed", were not permanent attachments to the deck or land.

The panel held that the decision of the HOA was not reasonable and not supported by showing some relation between the decision and the other buildings or the general plan of development of the community.

The panel noted that although it was ruling that the HO had the right to keep these potted trees on his deck, the HOA had the right to properly adopt rules limiting the number, size, and appearance of deck plantings, as well as the right to regulate the placement of other items (bags, toolboxes, sheds, hoses, etc.) on the deck, and that the HO would have to obey such rules.