#58-09, Foo v. Dellabrooke HOA (June 9, 2011) (Panel: Alkon, Molloy)

The homeowners appealed a 2010 decision of the HOA's board of directors that theythey remove several trees that were allegedly planted too close to the border that they shared with the adjacent lot.  The association alleged that the trees had been planted without permission and in violation of a guideline that required trees to be planted at least 3 feet from the property line.  The trees were now quite large and growing through the neighbor's fence.

While this case was pending, the neighbors filed their own dispute with the CCOC against the HOA, alleging that the HOA would not prosecute the case in good faith and asking for permission to intervene in this case.  The full CCOC voted to reject jurisdiction of the neighbor's complaint on the grounds that it was premature and referred the motion to intervene to the hearing panel.  The hearing panel voted to grant the motion to intervene because the neighbors had a special interest in the result of this case and would be directly affected by a decision in it.

The evidence at the hearing showed that the homeowners planted the trees in 2003.  The trees are Leland Cypresses, which grow rapidly, but at the time they were small.  At that time, the HOA had no rules specifically concerning how close trees could be planted to property lines but it adopted the current guideline in 2004.  According to the homeowners, before they planted the trees they asked a board member if any approval was necessary and were told it was not.  However, the governing documents of the HOA stated that no one could perform "landscaping modifications" on his lot without HOA approval.  At the time, the adjacent lot was not owned by the same members; after that lot was sold, the current owners installed a swimming pool and a wrought iron fence along the property line.  The Leland Cypresses began growing through the fence and the new owners were cutting the intruding branches back at their own expense.  The HOA never approved the trees, and the board member who allegedly said no approval was needed would not confirm he had said that.  The HOA took action against the homeowners after their new neighbors complained about the trees.

The hearing panel upheld the HOA.  The panel ruled that the covenants at the time of the planting clearly regulated landscaping changes and required approval for them.  The 2004 guideline stated it would "grandfather" in any trees planted before 2004 if the HOA had previously approved the trees.  These trees had never been approved and were therefore not exempt from the 2004 guidelines.  TheHOA's failure to take action against the trees for 6 years did not prevent it from doing so now, because the HOA bylaws stated that the failure to enforce a rule in the past did not repeal the rule.

The panel retained jurisdiction and delayed issuing an  order on the future of the trees pending negotiations between the parties on that issue.