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Grandfathering hedge heights

Started by JeanF4 • 22 replies • 4123 views

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JeanF4 (California)
Posts: 7
Posted:
Location: master-planned subdivision in Southern California.

Last June, our HOA enacted a new rule that limits the height of ficus hedges to eight feet from ground level. Problem is, several homeowners had ficus hedges higher than 8 feet. They were grandfathered.

The hedge height rule was introduced in response to complaints from the owners of adjoining properties, whose mountain views were blocked by the high hedges. Instead of resolving the issue, the grandfathering made the high hedges permanent and legitimate, resulting in a loss of value and enjoyment for the properties that lost the mountain views.

Do you think the HOA acted legally by grandfathering a situation so detrimental to other owners? In the affirmative, what would be the legal reasoning for the rights of the high-hedge owners to prevail over those of the owners whose views are blocked?

The argument most frequently heard for grandfathering the high hedges is that the corresponding properties are lower than the adjoining row (the backyards to both rows are butting each others), so that the people inside the lower houses have no privacy, being in plain view from almost anywhere on the higher row.

I do not buy this privacy argument for two reasons:

1) we are in a planned community, so that the owners who bought the lower houses could and should have seen on the master plan that their house offered limited privacy. They cannot complain ex-post about a situation that was easy to avoid.
2) furthermore, there are several artificial lakes in the subdivision, with houses on both sides of the lakes facing each others, each side being able to see right through the house in front of it. The owners of lake houses have repeatedly complained about the lack of privacy, yet the HOA has consistently refused to allow them to plant trees or other screening vegetation, claiming that it would spoil the vistas.

It seems to me that the HOA is acting unfairly by treating owners inconsistently.

Thanks for your comments and/or references about how similar issues were resolved.

MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JeanF4 on 04/30/2010 7:19 PM
Do you think the HOA acted legally by grandfathering a situation so detrimental to other owners?


Yes, they not only acted legally, but that was the only thing they could have done. You cannot post-date a restriction.

In other words, if the residents with the hedges grew their hedges with the understanding that there was NO height limit to their hedges, then you cannot enact a covenant or rule and go back and force those now out of compliance to comply. They would have a much greater legal action than those who now claim their views are obstructed.

You can only enforce the rule/covenant moving forward on NEW violations.

Quote:
Posted By JeanF4 on 04/30/2010 7:19 PM

In the affirmative, what would be the legal reasoning for the rights of the high-hedge owners to prevail over those of the owners whose views are blocked?

I indicated that above. And it has NOTHING to do with "privacy." It's about legalities.

The hedge owners had no restriction on their hedges when they were planted. There was no requirement on them whatsoever to limit the height.

Now enters a NEW rule. That rule can ONLY apply to the people who currently have hedges UNDER 8-feet tall, or whatever the now-maximum height is. It can only be enforced moving forward. You cannot go back and make people cut or trim the hedges that were legal before the new restriction.

However, if the 8-foot-tall hedge owners have damage to the hedges, and have to replace them, the now new hedges will be restricted by the new rule.

This happens in HOAs all the time and is not unusual.

If there is no restriction on sheds, for example, and people built sheds, then the HOA creates an amendment disallowing sheds, they cannot go back and make the people who erected their sheds during the time period when sheds were still allowed to get rid of their sheds.

They CAN, however, refuse to allow a new shed to be constructed by that person if the old one needs to be replaced.

It also happens in city/county/parish zoning situations, as well. If a hog farmer has a hog farm in an area where the zoning does NOT RESTRICT HOG FARMS, and the city/county passes a NEW zoning ordinance that disallows hog farms, guess what? The Hog Farmer that is already there gets to keep his hog farm. He is "grandfathered" in. However, once he sells the property, it will fall under the new zoning restrictions and the hog farm will have to go.

So, not only is the HOA acting fairly, it is acting legally as well.

What would be unfair would be for someone who was in compliance before a certain rule was passed, in good faith that they could engage in whatever activity (like growing their hedges over 8-feet tall), when there was no restriction against it to suddenly have to tear down or cut their hedges because a new rule was made. They played by the rules.

New hedges can't be over a certain height; existing hedges over the certain height get to stay until replaced, then they have to be restricted to the new height.

Hope this helps.

GlenL (Ohio)
Posts: 5,491
Posted:
Good post Michele with one caveat; unless there are view restrictions in the CC&R's, then they could be forced into compliance but view restrictions are clearly spelled out in the CC&R's.
Studies show that 5 out of 4 people have problems with fractions
JeanF4 (California)
Posts: 7
Posted:
Thanks, Michelle, that is very helpful.
TimB4 (Tennessee)
Posts: 21,043
Posted:
Quote:
Posted By MicheleD on 04/30/2010 7:45 PM
Posted By JeanF4 on 04/30/2010 7:19 PM
Do you think the HOA acted legally by grandfathering a situation so detrimental to other owners?


Yes, they not only acted legally, but that was the only thing they could have done. You cannot post-date a restriction.

In other words, if the residents with the hedges grew their hedges with the understanding that there was NO height limit to their hedges, then you cannot enact a covenant or rule and go back and force those now out of compliance to comply. They would have a much greater legal action than those who now claim their views are obstructed.

You can only enforce the rule/covenant moving forward on NEW violations.

Michele,

I actually disagree with your statement that "you cannot enact a covenant or rule and go back and force those now out of compliance to comply".

Unless you specifically mention in the guideline that something is grandfathered, or if you have a grandfathering clause in your governing documents, the Board can do this. I agree that they shouldn't, but they can. This was actually the issue I was faced with by my Association (which is why I became involved and am now serving on the Board).

Through my research, I discovered that grandfathering is not automatic. It must be stated somewhere that the grandfathering is granted or there is none. An example of this is Americans with Disabilities Act (ADA) to make their premises handicap accessible.

As I said, I agree with you that Associations shouldn't force those out of compliance with a new rule to comply. However, based on my research, if they didn't grandfather them, they could.

With Homeowner Associations, submitting and receiving approval for a change could be considered as having something grandfathered. However, that may have to be challenged. My State, VA, actually provided a form of grandfathering in their property owners association act, which states that the Association is bound by any statement they made in the disclosure given to the buyer. Therefore, if the house was painted a non-approved color, and the HOA failed to mention it on a disclosure statement, the buyer could not be required to repaint. Upon learning this, I actually composed and the membership voted to adopt a grandfather clause for the Association.

Tim

MicheleD (Kentucky)
Posts: 4,491
Posted:
Tim, my reply was based on the original poster's comment that the now out-of-compliance hedges were grandfathered.

But it would be very rare for a covenant amendment or rule to actually be retroactive -- which is the word I was looking for last night that seemed to escape me for some reason.

In our own development, fence rules were not established by the developer. After turnover to the residents, the architectural committee adopted rules regarding the fences in that the finished side is to face outward.

We had to grandfather all the fences that, prior to that, had the finished side facing inward.

However, once the fences need repair and/or replacement, as many are not doing, they must conform to the current guidelines.

We do not have a grandfathering clause in our covenants, but we were guided by several attorneys who told us that would we attempt to make the new rule retroactive, we would lose in court if it got that far.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Jean,

Grandfathering is a moot point if, as Glen says, mountain views are not protected in the covenants. On the other hand, if the mtn views are protected then everyone with a hedge blocking a mountain view should be required to cut it back. The grandfathering could only legally apply to those hedges which do not block a mountain view.
JeanF4 (California)
Posts: 7
Posted:
Many thanks to you all. This discussion is very interesting and it already flushed out a lot of issues.

To clarify, neither local laws nor the CC&Rs protect views. However, I am very uncomfortable about grandfathering something that has a major adverse impact on other people's property. None of the grandfathering legal cases I could find had such an adverse impact -- typically, they deal with pet sizes, rental restrictions, fences, sheds or whatever. In my subdivision, houses with unobstructed mountain views sell at a premium, and blocking those views through grandfathering the existing hedges result in a significant financial loss for the owners.

To clarify, I could not find anything in the CC&Rs that would mandate the grandfathering of non-compliant situations in the wake of a rule change.

Has anybody encountered a situation where the grandfathering has resulted in value impairments for others in the community? How was that resolved?
MicheleD (Kentucky)
Posts: 4,491
Posted:
Has anybody encountered a situation where the grandfathering has resulted in value impairments for others in the community? How was that resolved?

But it's moot. Especially since it's very subjective, but that's an entirely different subject.

If there is a change that disallows sheds, and sheds have been built before the change, this also impacts other peoples' views, and therefore the perceived value of the lots.

If my neighbor has a shed that is in just the right place in his yard, that is near barn-size and blocks my view, but there was no restriction on either shed sizes, placement or even if they are allowed at all, I can't demand that it be removed because it devalues my property. If there is nothing in the covenants that addresses either sheds or protected views, the shed is legal and stays.

In the meantime, if a new rule is developed that disallows sheds, the board can, and most likely will, grandfather my neighbor's huge monstrosity of a shed whose mere existence is allegedly devaluing my property. I can take solace, however, in the fact that now my OTHER neighbors cannot build similar structures, so my lot will not become "boxed in" by sheds.

If the board tried to make him remove it, I would imagine it would be quite a legal fight, and the board would not likely win.

The board has the legal right and ability to grandfather people when new restrictions place their property out of compliance.

As mentioned, even cities/counties/parishes and other localities recognize this and do the same thing.

I realize that lots with "good views" probably do sell at a premium, but if there is no covenant or local ordinance that mandates a perpetual unimpeded view, then the grandfathering of now-too-tall hedges is completely legitimate.

MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JeanF4 on 05/01/2010 8:27 AM

To clarify, I could not find anything in the CC&Rs that would mandate the grandfathering of non-compliant situations in the wake of a rule change.

"Grandfathering" doesn't have to be mandated in the governing documents. The board, in building new rules has the discretion to allow grandfathering.
MaryA1 (Arizona)
Posts: 7,043
Posted:
In re-reading Jean's original post, I'm wondering if the BOD even had the authority to adopt a rule regarding hedge heights. If there was nothing in the CCRs addressing the height of trees or shrubbery, then I don't believe they had the authority to enact this rule. Jean also stated there is nothing in the CCRs protecting mountain views. The fact that "view" homes may sell at a premium doesn't mean the HOA is obligated to protect those views. The BOD can only do what their gov docs give them the authority to do!
JeanF4 (California)
Posts: 7
Posted:
I am amazed at the legal formalism of some of the responses. A shed is not a hedge, and the loss of a shed is considerably more serious for the owner than the loss of two feet in the eight of a ficus hedge -- California "spite fence law, Ca Civil Code 841.4" limits fences and hedges height between adjoining properties to 10 feet. Going down to 8 feet does not appear to be such an intolerable sacrifice for the people affected compared to the gains for the owners on the other side.

Instead of looking at it in a dogmatic way, shouldn't a Court of law take into account the economic costs and benefits for people on either side?
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JeanF4 on 05/01/2010 11:24 AM
I am amazed at the legal formalism of some of the responses. A shed is not a hedge, and the loss of a shed is considerably more serious for the owner than the loss of two feet in the eight of a ficus hedge -- California "spite fence law, Ca Civil Code 841.4" limits fences and hedges height between adjoining properties to 10 feet. Going down to 8 feet does not appear to be such an intolerable sacrifice for the people affected compared to the gains for the owners on the other side.

Going down to 8 feet may not appear as such a sacrifice to you, but you aren't the owner of the hedge. If it were on your property and you had specific reasons for growing a hedge that tall, it would be incredibly more important to you.

Quote:
Posted By JeanF4 on 05/01/2010 11:24 AM
Instead of looking at it in a dogmatic way, shouldn't a Court of law take into account the economic costs and benefits for people on either side?

No, I don't think it should at all. In fact, there is something in this proposition that is very unsettling to me. How could I ever be secure in my homeplace if I thought that another landowner can take me to court and require removal of some of my artifacts (absent any covenants, restrictions or ordinances to the contrary), simply because the other landowner claims their potential for more money if they want to sell outweighs the actual cost (or sacrifice) of my removing or altering my artifact. That's kind of scary.

And Mary makes a good point.

Mary, this is a guess, the CC&Rs PROBABLY give the Architectural Committee the ability to approve and create guidelines for things like fences, which often can include hedges.

Ours does, and we can be fairly flexible in those guidelines, except for the part of our covenant that states that in no case can a hedge or fence advance past the front plane of the house. So we can limit and make rules regarding fence heights, materials, hedge heights, etc, but we can't approve a placement that reaches past the front of the house.

It is possible that Jean's covenants allow some sort of arch control and up until now, no height limit was ever drafted.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Michele,

I wasn't thinking of A/C guidelines as Jean said rule which I took to mean a board adopted rule. But, you're right, it could be an architectural guideline and depending upon the authority the A/C has it may be OK. According to my CCRs, the A/C has the authority to adopt rules so it would be OK -- don't know what power Jean's A/C has.

I also agree with you regarding a court opinion. However, one never knows what a judge will take into consideration. I would like to think that if views are NOT protected, then he would not rule based as though they were protected. Some people will pay extra for anything; that doesn't mean the property value is increased.

I'm wondering if Jean has a property with a "view".
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By MaryA1 on 05/01/2010 4:02 PM
Michele,

I wasn't thinking of A/C guidelines as Jean said rule which I took to mean a board adopted rule.

Well, at least for our HOA, the Arch Committee guidelines must be formalized through board rules/resolutions.

I just presumed when the word "rule" was used, that it was probably the same thing.

For all we know, it was an actual covenant amendment.
JeanF4 (California)
Posts: 7
Posted:
Our A/C has authority to rule on landscape, including choice of plants (approved palette), location and maintenance to certain standards. The validity of the 8-foot max height rule is not an issue.

I am just puzzled as to why that rule took so long to be enacted, and why the Board is so reluctant to implement it. This, though, is no exception. We have an exceptionally lackadaisical Board, with no clear understanding of their fiduciary duty with respect to rule enforcement. Very different from the six HOAs in five states I was a member of before. For those, the problem was overbearing Boards that would enforce their whims and fancies instead of the CC&R.

It is tough to find a proper balance with amateurs who mistake a Board Directorship for an ego trip.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Michele,

So true about the "for all we know". It's amazing how much more info we get the more we dig and oftentimes it's contrary to what was originally stated. Of course I'm not referring to any particular poster.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JeanF4 on 05/01/2010 4:23 PM
Our A/C has authority to rule on landscape, including choice of plants (approved palette), location and maintenance to certain standards. The validity of the 8-foot max height rule is not an issue.

I am just puzzled as to why that rule took so long to be enacted, and why the Board is so reluctant to implement it. This, though, is no exception. We have an exceptionally lackadaisical Board, with no clear understanding of their fiduciary duty with respect to rule enforcement. Very different from the six HOAs in five states I was a member of before. For those, the problem was overbearing Boards that would enforce their whims and fancies instead of the CC&R.

It is tough to find a proper balance with amateurs who mistake a Board Directorship for an ego trip.

Okay, Jean, with all due respect, and it may just be me, but this post here ^^^ appears to be the polar opposite of the original post you made on this thread.

Either the board grandfathered the previous hedges or they are not enforcing any of it. Which is it?

Because if they grandfathered them in, they are still "enacting" the rule.

I'm very curious about the difference of the two posts. They are very confusing to me.

Can I ask:

Between last year when the rule was created and now, did your hedges reach a height above the 8-foot mark and, as a result, did you perhaps get a notice?

If that is what happened, then my next question is:

Did you then contest the notice by pointing to hedges that were also higher than 8 feet and were told those were grandfathered in?

JeanF4 (California)
Posts: 7
Posted:
My interest is purely intellectual. I am not personally concerned by either side of the issue.

The owners with the high edges have been grandfathered alright, but the Board does not even attempt to enforce the new rule on those who planted their hedge after it was enacted.

I think the Directors are delinquent in their fiduciary duty for not enforcing the new rule, and that will soon result in a gigantic mess...

There is a lot to be said for buying a house in a subdivision without an HOA.

Anyway, thanks you all for your excellent comments. It is a beautiful day outside, and my family is calling me for some outing...
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JeanF4 on 05/01/2010 5:27 PM

The owners with the high edges have been grandfathered alright, but the Board does not even attempt to enforce the new rule on those who planted their hedge after it was enacted.


Well, if it's like our HOA, then we do NOT go out and "police" for infractions. However, if someone provides us with a complaint or notification, we follow up on and confirm each and every one, then enforce against it if it is confirmed.

We have people in our own subdivision who probably have the same complaint, but there is no reasonable way we can monitor 600 residents with a 5-member board.

Some HOAs are more proactive, but we codified our complaint-driven process long ago and it has been validated for us during the few court cases we've ever had to bring.

If you know of certain addresses that have come out of compliance with "new" hedges since the rule was enacted, be a supporter of your own documents and notify the board with the address.

Quote:
Posted By JeanF4 on 05/01/2010 5:27 PM

There is a lot to be said for buying a house in a subdivision without an HOA.


Yes there is. And there is a lot to be said for buying in a subdivision WITH an HOA. Having the choice between the two, I personally pick the subdivision WITH the HOA.

Quote:
Posted By JeanF4 on 05/01/2010 5:27 PM

Anyway, thanks you all for your excellent comments. It is a beautiful day outside, and my family is calling me for some outing...

Well, it's Derby Day here in Derby City, and I wish it were a beautiful day outside.

Unfortunately it's been raining all day, so not much going on outdoors! Have a good one!
TerryS (Virginia)
Posts: 22
Posted:
Hey Tim - I know this is a couple of years after this discussion, but I was doing a search on grandfathering and found it, and your comments. You helped me a couple of years ago (I was on our BOD here, in VA also); I got off for a year but I'm back on - again as President - and looking for some guidance. We're interested in trying to change a section of our Covenants, but grandfather lot owners in who purchased before whatever the effective date of the new version will be (assuming we can get enough to vote!) I read with interest your comment that VA "actually provided a form of grandfathering in their property owners association act, which states that the Association is bound by any statement they made in the disclosure given to the buyer." I've searched thru the POA act and can't find that. I believe you, I just need help seeing where it is! Our issue is allowing campers, travel trailers, etc. on lots without a house (to camp temporarily 9 mths of the year - we are on Lake Anna). Our Covenants have always allowed them, but over the years we have become much more residential looking, it looks like the majority of the membership want that changed. But some of us on the Board figured that those that had been allowed in the past, should be "grandfathered" in, and continue to be allowed until they sell their lot. Having that info. from the State will certainly help quiet those that want to just pull the plug on everyone (even though, personally I'm not for them, I figured that legally we could be in for a battle that we would probably lose!). Any help you can give would be greatly appreciated. Thanks...Terry
CarolR11 (Colorado)
Posts: 2,563
Posted:
At our HOA, it's usually Owners who send violation reports to management, which, in turn, sends to them to us (the board) for a decision. So why not do what another poster suggested and send the addresses of those in violation to your board or mgmt. co.?

I'm wondering if the board proceeded properly in the first place. Calif. requires a 30-day comment period from homeowners before the board may make a new rule. So, the proposed rule must be mailed to H/O's and their comments discussed at a subsequent open board meeting.

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