HOA control over back yard trees by changing the Architectural Committee rules after we purchased our home
I live in Scottsdale Ranch (just east of 96th St and south of E Shea Blvd. in Scottsdale. My wife and Ihave owned our single family home since 2000. In 2021 we replaced a dying, mature pyracantha hedge situated next to our rear side lot wall with a ficus hedge that would grow to, and be maintained at a similar height (approx 9-10′) to provide privacy (visual and noise) to both our home and our neighbor’s. We received notices (and eventually fines) that no trees were allowed and that they had to be removed citing that we had violated the new Architectural Committee regulations that went into effect on or about April of 2018. The rules were changed from “no trees allowed that would have a trunk of 12 inches or wider at maturity” to “no trees (of any kind) within 15′ of any lot line (with possible relaxation to 10′)”. We were unaware of the change in rules and did not vote to change them. The CC&Rs did not indicate that any such specific change in the Architectural Committee landscaping rules could or would be changed when we purchased our home. I would say that almost every single family home in Scottsdale Ranch (approx 4,000 homes) has trees within 15′ of lot lines and many are less than 5′. Most of the lots are 60′ to 80′ wide and 100′ to 120′ deep and after you factor in a pool, patio and your house with front year setbacks the only logical place to plant trees is near the lot lines which is where most of the trees are. This rule prohibits even the replacement of an existing tree should it die or require replacement as this HOA is now approx 40 years old and the vast majority of trees are mature. The HOA cites concerns about nuisance and potential damage to party walls for the change. I walk the neighborhood regularly and have not seen any such damage. If any such damage occurs the owner of the tree is responsible and good trees, like fences, make good neighbors.
I know legal advice is not provided but with recent AZ court cases is this an enforceable change in the rules? How do I combat this unreasonable rule and/or get it changed so that trees, privacy and the enjoyment of our back yards is not infringed on?
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Paul,
The use of rules to apply restriction on your private property that are not specified in the CC&R’s is the greatest abuse of power in these communities. If you had such a restriction in your CC&R’s and the association wanted to change that restriction as they did in your specific case, then the recent case decision from the Arizona Supreme court in the Kalway case would have concluded that the association could not change the CC&R’s to do this without the unanimous consent of all homeowners. Surely then the association had absolutely no authority under the law to make this change without any consent from any homeowner. My recommendation to you is to inform your association board that they had no authority to make this change to the restriction on your private property without the approval of the members and unless they return the policy to the original language they could be subject to a lawsuit under the Kalway v Calabria Ranch HOA precedent. If they refuse speak to a licensed attorney and seek their legal advice.
This kind of crap need to stop in this state but until these associations are held accountable to the law they never will.
Dennis