#565-G, Collingwood Homeowners Association v. Kriese (September 18, 2002) (Panel: Philbin, Gaffigan, Bruce)

The homeowners association (HOA) complained that the homeowner (HO) had installed a vegetable garden, arbor and birdbath without written approval.The HO replied that the HOA had no authority to make the rules and that it did not enforce them consistently.

At the hearing, the HO argued that he no longer used the garden for vegetables, and that the landscape timber framing of its borders was "landscaping" and not a "structure" (the HOA's covenants specifically state that HOA approval is required for "buildings, fences, walls or other structures"); that the arbor was part of his fence and not a "structure"; and that the birdbath was not a "lawn ornament" regulated by the Declaration since it was not on his lawn, and also that the HOA allowed birdbaths on other units.

The hearing panel ruled that even if the garden was not used for vegetables, the framing of the garden constituted a "structure" requiring prior approval.However, it was not clear at the hearing if the framing itself violated any architectural standards.The arbor was a "structure� that not only needed prior approval but also was not compatible with the HOA's existing standards.However, the birdbath was now permissible under new rules adopted by the HOA, which stated that birdbaths were not "lawn ornaments."

The panel ordered that within 30 days from the effective date of the decision the HO had to submit an architectural application for the garden framing.In addition the HO had to remove the arbor completely.The birdbath could remain.