Thanks to the Board, several letters supportive of the Covenants and preserving trees have been published. They appeared under the August 11, 2015 "Events and Notices" information packet link on Cape George's website.
See the letters on pages 3-14 of the document by clicking here.
That member letters appeared - even buried deeply - is enough to hearten those concerned about the extreme definition of a "hedge" and the even more extreme remedies being applied for "hedge violations". For more about the issue, see earlier post by clicking here.
In his response to one of these letters, the Board President cites "Lakes at Mercer Island Homeowners Assn. v. Witrak". Briefly, that case involved a homeowner, who although denied a permit, went ahead and planted 12 huge Douglas Fir trees, each between 25 and 30 feet high. She must have hired a forklift and worked in the dead of night to pull it off!
It was part of an ongoing dispute between the homeowner and the HOA. There was, however, a clear restriction written into the Mercer Island CCR's so her action was impermissible. The court naturally ruled in favor of the Mercer Island HOA.
This case, however, doesn't remotely resemble what's happening in Cape George. The trees being targeted here are mature trees planted years ago - not ones illicitly planted to circumvent a clear restriction. Our covenants encourage planting vegetation; their language is protective of trees; and building rule 3.2 prescribes windowing and thinning to enhance views.
The Board's extreme actions are based on their interpretations -not of the Covenants- but of subsequent Rules and Regulations. An atty. here points out that "the Board cannot enforce by Rules and Regulations, what the Covenants protect". This is the legal equivalent of going the wrong way on a one-way street.
Moreover, the existing hedge remedies are absurd in specifying the same penalty for shrubs and trees. A shrub cut to 8 ft gets a "haircut"; a mature tree cut to 8 ft gets the "death penalty". The permitted alternative to strip "any two adjacent mature trees of commingling foliage" just equates to a "slower death". This is a clear violation of the language and intent of our Covenants and Rules.
Citing the Witrak case is once more an attempt to justify an extreme interpretation. However, the Witrak case is not on point nor are the facts similar to what's happened in Cape George. Multiple attorneys have pointed this out to the Board over the years. Their opinions are available to anyone interested.
A "hedge" of 100 ft. trees on the Marquess of Landsdowne's Scottish estate doesn't justify an extreme definition either. Huge trees are not what is commonly intended by the word hedge. And you certainly can't shoehorn this extreme definition into a Building Rule in an effort to get around the Covenants. Again in the opinion of atty's, the Board's action exceeds their authority.
Imagine the nasty fight that would ensue if Scottish villagers decided in 2015 that the Marquess must rid his "damned hedge of commingling foliage" or cut them to 8 ft. The Marquess would rightly protest. "Well," the villagers might shriek, "our new King can bloody well interpret the law any way he sees fit and, oh by the way, he's siding with us". In that case, the incident would be remarkably similar to what's happening here.
A more satisfactory solution that would uphold the intent of our covenants would compel a reasonable attempt at "windowing and trimming" per Building Rule 3.2. The parties themselves could try to resolve disputes with the help of Cape George mediators.
If no compromise solution arose, an arborist would be hired to specify the extent of limbing that would not endanger the tree's health. All costs would be defrayed evenly between tree owner and complainants. The Cape George Manager would make the final determination of a remedy based on the arborist's report.
P.S. Here's an example of how effective windowing and thinning can be. This tree used to block half the view of the Dungeness Spit until it was limbed.
