A)    Original CC&Rs recorded in 1963 had no mention of views.

B)    Current CC&Rs recorded in 1997 mention views within Section 28 (Trees) as follows:

28.  TREES.  It is the responsibility of each Owner to maintain all trees in accordance with this Unified Declaration.  Trees on the same level as the house should not exceed the height of the house.  The height of the trees planted on or below the crest of a slope located along the rear property line of a lower level Separate Interest shall not exceed in height a horizontal plane extending outward from, and 36 inches above, the finished first floor elevation of the upper level Separate Interest.  EXCEPTIONS TO THESE RESTRICTIONS MAY BE APPROVED BY THE ARCHITECTURAL COMMITTEE AS LONG AS VIEWS FROM SURROUNDING PROPERTIES ARE NOT SUBSTANTIALLY AFFECTED.  Before planting any trees, the proposed  location and species of such trees must be approved in writing by the Architectural Committee.  This section does not apply to Condominium Associations which are responsible for maintaining the trees within their respective Condominium Association. 

C)    In October 2006, the previous Board instituted an aggressive action to comply with the height restriction as written in Section 28.  A Tree Committee was created to administer a broad enforcement policy regarding trees.  The newly appointed Committee ruled that the view of some properties was “substantially affected” by trees from as far away as a half mile.  Records indicate that members of the Tree Committee filed 68 of the 129 cases that were filed.  Many residents resisted what they believed to be an unreasonable interpretation of Section 28.  In December 2006 a poll was taken to determine whether homeowners wanted a community where the height of the trees would be limited and reduced to the height of the single story homes.  In the largest response ever received, the homeowners voted that they wanted the tree height restriction removed from the CC&R’s.

 It is interesting to note that revised CC&R’s proposed by the previous Board, which was made available to members (but never sent out for a vote) at a Town Hall Meeting in 2006 had no mention of views.

D)   Your current Board believed that the answer was to define a view clearly so that there could be no question of interpretation in the future. This proved to be a  much more complex task than we ever anticipated.  After months of deliberation, Joel Kriger, legal counsel to the HOA, was asked for guidance.  We asked for his comments and advice on 14 different versions/ideas that had been written and suggested by various Board members.

   Mr. Kriger attended the January Board Meeting and gave an in depth presentation on the subject of views.  We learned, to our surprise, that our current CC&R’s do not grant view rights.  He stated that view rights are implied by the tree height restriction but are not explicit and that view protections must be provided either within the Deed to the property OR within the CC&R’s by a specific description of the view and the lots to be protected.  He went on to say that no matter how well written it may be, the interpretation of a view is always subjective, impossible to cover all situations and could be potentially problematic to administer.  He continued, “the more complex you get, the more grounds for disagreement, the more controversy it will generate and the more possibility for litigation.”  He further stated that to insert view protection into the CC&R’s of a mature community with mature landscaping would  be a major step.
   
    Questions that would need to be addressed to write view protection into CC&R’s included:  What constitutes a view?   Is it the mountains, the ocean, the rooftops, the trees, the condos at the end of the street?   Should it be limited to a certain section of percentage of a lot or the full panorama surrounding the property?  Which properties “significantly” affect the view lot?  Then it must be designated whether it is the view from the back yard, the side yard, the patio?  Everyone has his or her own idea about what is significant.  How do we deal with all the properties that do not fit neatly into the view description?

A copy of the transcript of this very informative presentation is available on this website and page following this article.

E)   Following months of deliberation and the professional evaluation given by Mr. Kriger, the Board agreed 6 to 1 (Hillard Tavrow dissenting) to not attempt to describe a view for insertion into the revised CC&R’s.

Article Prepared by Marilyn Goebel
President 2007-2008,2008-2009 ***

PORTIONS OF THE 1/8/08 TAPED BOARD MEETING HAS BEEN TRANSCRIBED BELOW FOR YOUR REFERENCE. 
Joel Kriger, legal counsel, was asked to attend this meeting to provide guidelines and possible legal ramifications of the many proposals the Board was considering. 

Joel begins presentation after handing out material:

“I put together a work sheet in which I tried to take every thing that you had given me and put it on a couple sheets of paper so we could look at it starting from what we have including some commentary from me.  Also, from what is proposed to some ideas on enforcement procedures.  Also, there was kind of rework of the old Avco policy on views which were the ones that most of the Board has been kicking around for a while. Then I added 2 new ideas, which depart from Avco. 

I divided the worksheets into two sections. 

Part A: First was what you have now.  Obviously that’s got to be the starting point.

I see what you have now...you don’t have per se view rights.  You have something that kind of sounds like view rights.  In other documents where view rights are given to plot owners and it’s very specific it says, “You have a right to a view” and goes on from there. How to define what the view is and I’ve seen everything from “you have a right to a substantially unobstructed view of whatever your lot has” to documents that have architectural drawings and actually define view corridors.  A lot has certain view corridors that are protected. If it’s not in a view corridor then it’s not protected so I’ve seen the whole gambit.  It’s always subjective, how much is substantial, how much is impaired, what percent, what point is a bush impacting a view, these types of things.  What is a view?  Is it ocean, trees, mountains, etc. all kinds?

We are starting from CC&R’s that don’t have a provision.  It basically only has a provision that say how high the trees and hedges are supposed to be.  That’s really the starting point.

One approach is that you can work with that but it’s problematic.  You can work with... and amend that maximum height of certain things but not make it as specific.  Rewriting that without granting specific view rights.  If you start granting right to specific view lots it (1) if you have a view it preserves it (2) the difficult thing is the administration of a provision like that is because now there are more rights bestowed on lot owners and views are difficult things to enforce and determine whether there is a violation or not because of the subjectivity of it. 

What is a view?  Is it part of a view or is it blocking.  If we give the person 66% of an unobstructed view how do we determine if it’s 66% or 70%.  It’s not something you can go out and measure.  It is always a difficult thing. 

In drafting provisions or coming up with a view policy one of the things you are going to want to do, what I would want the Board to do, is come up with something, it’s not going to be objective, it can never be, but at least something that is relatively easy to enforce.   Something that is not going to be overly complex and that has an in house procedure to enforce. 

Where there’s a process in house and that process would pretty much determine it, which would hopefully prevent taking this thing further into arbitration and to court.  We have to set up an in house procedure that will be fair and that people will respect the procedure.

The other thing that occurred to me in looking at this problem is that we don’t have a view policy and one wasn’t in place when the CC&R’s were drafted originally in the 60’s.  I look back and I see the original documentation written in the 60’s and then don’t see anything until the 80’s where they actually put a limit on the height.  So it did not come into effect for 20 years.

So what we have is, we have people who have homes, some people have homes with no view but they have mature landscaping that provide shade and provide...it’s their home...provides beauty to their lot.  Then we have people above them and have views and I think there has to be a balance here.  Because we didn’t have a view policy in effect for all these years, to just say OK now there’s view rights and every body else’s right if you don’t have a view lot are subservient that doesn’t seem quite right either. Somehow there has to be a balance here. And that people who aren’t...  that the view isn’t everything.  People who have mature landscaping should have some rights to keep that also, plenty of rights to keep that also.

There are a lot of things in play. We’re not dealing like with a Developer who is sitting down with a blank piece of paper and subdivision map and no homes there yet and maybe just a grading plan and we’re going to figure out what our view policy is.  We don’t have that.  We have a lot of things in play now; a lot of different interests and all things have to be considered in this policy, which makes it a huge challenge for the Board.

I’m just going to run through...and this is going to be a kind of a summary of all the things I’ve seen put forth on the table so far.  From there hopefully figure out where we want to go with this discussion.

First thing I’m going to do on this worksheet is summarize the existing provisions for hedges, fences and trees.

 (#1) The Current CC&R’s Do Not Grant Any Lot View Rights. Specifically they don’t say “and you have, you’re in lot a, b or c, you have a right to a view.” 

 (#2 and 3) We have Restrictions On Size of Trees and Restrictions on Fences and Hedges.  We have paragraph 28 and paragraph 26 are the ones that have these type restrictions.  Both paragraphs, and this is where the view issue comes in, grants exemptions or exceptions to these heights and the A/C can approve a fence, a wall, etc., higher than the maximum upon consideration of the impact of the view of the adjacent owners and similar exceptions for the trees.  Exceptions by the A/C as long as views from surrounding properties are not substantially affected.   In essence what we have is a restriction on the height of trees, fences and hedges and A/C is allowed to make exceptions if views are not affected.  That’s about all we are working with.

Then what came into the mix as the Board looks for guidance historically...how do we interpret?  So right now what we have is an A/C, and I don’t know if they have written guidelines, that had a way to make exceptions to the height restrictions. They do that based on if the committee doesn’t feel the view is impacted they can make an exception and say, “Well, the tree can be taller than what the maximum is, this fence can be taller, this hedge can be taller.  That’s what we have so far.  One way this can go is the A/C can be given guidelines how to implement those exceptions. 
 
(#4) Where it has gone, though, is a lot of emphasis has been put on what Avco View Policy.  In 1977 they issued an advisory letter (determined it was to the Chairperson of RB Planning Department).  It was an opinion that they issued.  It was pretty specific.  It was well thought out, very detailed but not part of the CC&R’s and I don’t know if it was ever adopted formally by the A/C to use so that’s what I’m seeing a lot of the proposals being adopted from that.  It may be a good idea.  It may have been a good idea in ’77 but as landscaping matured we have to evaluate whether it’s a good idea now.  There’s no reason that has to be followed or not followed. 

(#5)  My next point was, there is no view policy now, one option is to Amend CC&R Provisions on Maximum Heights for Fences, Trees, Hedges, etc and based on the problems of the enforcement of that in the past address that in the section.  Address how we are going to deal with the maximum height and possibly empower the A/C to adopt guidelines on exceptions that would be approved by the Board and grant authority to the committee.

The other approach would be more comprehensive and there have been a lot of proposals set forth on that that we would actually go from a height restriction that grants the committee the power to make exceptions to where lots are granted rights to a view in the CC&R’s.  In California law there is no automatic right to a view.  Rights only come out of deed restriction.  So, if we’re just in a community with single-family detached homes with no CC&R’s, no HOA, no deed restriction and, say, I have a home and your home is below mine and you have big trees, I don’t any right to a view.  Your trees can get as tall as they want to get.  They can block out my ocean view or whatever view I have and I have no legal right that it is protected.  If I was in a CC&R community or there were deed restrictions that said I had a right to a view that is where the rights come from.  Right now, if we’re thinking of making an amendment to give lots views that is a big step.  A big thing we don’t have rights now.

Under Part B of my outline I have gone through the different concepts that I’ve seen and pulled them out issue by issue some of the things that have been thrown on the table. This group kind of works with the Avco concept.

(#1)  If we are going with the CC&R amendment, first we’d have to Define what’s A View Lot.  What lots have rights to a view.  What’s been put out is one full story higher than the adjacent lot.  My comment there, I am assuming that it’s between the upper graded pad and the lower graded pad would be 8 feet or more would be your one story.  That would have to be addressed.  What lots are entitled to a view if we’re going down that road.

(#2) on my list, and again these are not in any particular order; these were things in the proposed policies.  Approval of Location and Species of Trees.  That’s fine and that is really non controversial.  It’s very common for A/C to control putting in landscaping on lots.

(#3) is another concept in the policy is Grandfathered Trees.   What was put out was that any tree that is 10 years or older is exempt from view restrictions.  Also considered for exemptions are trees on a slope whose root structure significantly contributes to stability of slope.  So, again, enforcement-wise that kind of provision is a tough one because who knows when the tree went in.  We’ll have hearings on well, it was 1996 and not 1998 and who knows?  It’s hard to establish and with turn over and people moving in and out it’s hard to establish when the tree was planted unless you have an arborist cut the tree down and count the rings.  That kind of solves the view problem. 

(Mario suggests coring the tree).  There we go. OK.  You see where this goes.  Now we have coring the trees, hiring the arborist to get the expert to figure out how old the tree is. 

(Jerry reminds that we would then need a second opinion.)

(#4)  View from Rear Yards Protected up to 66%.  Again, subjective determination...will be a judgment call by committee assigned to evaluate it.

(#5) Avco had proposed Views from Side Yards Not Protected.  Well, what if people have a great view from their side yard?  I don’t know how lots are set up but my comment here, is there some reason side views are not protected at all?

(#6)  Limitation on Tree Height. Trees planted on burdened lots must be maintained to a height of no more that 36” plus (etc).  That is currently what is in the CC&R’s, right? (Yes). My question here was, are trees here that block 1/3 or less of a view exempt from the requirement?  That’s something to think about because you only get 66% so if there is a tree that is too tall that blocks less than 1/3 of a view is that one going to be OK?  Third comment, are trees over ten years old and/or those with root structures supporting banks and hillsides proposed to be exempt?
        
(#7) Architectural Guidelines to be Created by the A/C and Approved by the Board.  That would obviously follow with whatever you go with the committee is going to be enforcing and having discretionary authority. Then you want some guidelines so people know what the rules are.

(#8) Was the thing I discussed and I think I saw that in some of the policies, too, Balancing of View Interests by the A/C.  The question is, should the impact of a view obstruction versus that of removal of mature landscaping from the lot below be balanced to consider the right of both homeowners?  Again, if you are implementing a view policy this late in the game and people now have mature landscaping that was planted legally should they have to pull it all out just to preserve somebody’s view or reinstate a view?

(#9)  Another concept that was put out was Cost-Sharing of Removal and/or Trimming of Mature Landscaping.  The concept here is that the lots burdened with view restrictions would not have to bear all the cost of tree trimming and removal, so, I have this mature landscaping and the homeowner behind and above me is complaining that my trees are blocking his view.  The committee comes along and says, “Well these trees above the height limit are blocking the view.”  Now I’m going to have a $5,000 bill for removing or trimming trees.  The concept here is who should bear all that cost?  What’s been thrown out is possibly the lot owner seeking to increase his or her view or restore the view would also have to share some of the cost.  Which could be removal, it could be regular trimming of the trees, what have you.

(#10)   Procedure for Enforcement and Resolution of View Disputes.  These are just some thoughts I had.  If the committee goes with an aggressive view policy I think we don’t want to be in a situation with volunteers going out and looking for violations.  So what I was suggesting no active policing for violations.  Enforcement action only initiated upon a written complaint by an owner of a view lot.  Enforcement policy to be flexible but consistent enforcement criteria to balance the interests of both the view lot and the burden lot.  Then at a point when a complaint is made the view would be documented from the point of the complaint. 

In other words, you can’t go back to the pre-landscaping when the house was built and say “This is your view and this is your view in perpetuity it should be preserved as it was when the house was built.”  Instead, I am suggesting, one idea would be at the time the complaint was made that is when the view is documented and corrective action is taken, trees trimmed, etc, have the view documented with photographs and that’s the view of that lot. That sets the baseline that would be used.  I am not suggesting you go out and document every single view lot only as they come up by complaint.  Hopefully there wouldn’t be a huge amount of complaints and it would be a manageable thing for the Board and the volunteers to handle.

So those are the things that have been kicked around...that last part was my ideas.  The first group were things I’ve seen in the different view policies proposed.  The next group of things leaves the Avco policy behind and other things were thrown out there. 
 
(#11) Eliminate View Rights.  Which you almost don’t have view rights right now, as I mentioned, so that’s not super far fetched.  If you eliminate the view rights I guess you’d still have some limitation on management of trees.  Again, I don’t have an idea of how to approach that or how you would do it but obviously there would be some limit on trees, height of trees. Example, eucalyptus trees obviously grow big and the branches can fall. You want some criteria for policing landscaping but there be no automatic view rights.

(#12)  Propose New Policy #1.  Granting views.  This would be instituting views.  Grant a 120 degree unobstructed view.  Balance view against privacy loss and the cost of tree trimming is borne by view lot.

(#13)  Proposed New Policy #2.  Again, this policy is also instituting a view right. A view is one existing upon date of purchase.  Any planting over 2 years old is part of the view and not required to be trimmed regardless of future impact.  Plantings less than 2 years old, which potentially could affect the view, can be removed at the expense of the view lot.  If the burdened lot objects, the burden lot is the lower level lot, then the planting must be kept at a specified maximum height.  New plantings would be subject to maximum height limitations.  Protected views for homes purchased prior to date of adoption of procedure are the views in existence at the time of approval of the policy.  Summarizing it, we set the view at the time the home is purchased, if the home is purchased prior to adoption of the policy then the view is set at the time of the policy is implemented.

Obviously, there are a lot of concepts floating around.  That’s everything I could think of and everything that I saw.”

Joel ends presentation of prepared material.

NOTE:  The remainder of the transcript is edited and paraphrased.  However, Joel’s responses are exact quotes when possible.

Discussion begins:

Board:  There are questions about view rights now.

Joel:  You don’t have outright view rights now.  They are kind of there.  The best you can say is they are implied but they are not explicit, that’s for sure.

Marilyn: ...the adding of something this significant to the CC&R’s at this point could be opening a major can of worms.

Hillard:  Joel says it’s implied.  It’s certainly a strong implication.  Why would they refer to height unless to protect a view...If it were enforced you would be enforcing views.

Peter:   That was an interpretation...

Hillard:  Yes, but it is clearly an issue that is in there and if it was enforced you’d be enforcing views.

Peter:     As Joel said, it is a subjective issue.  Views are always going to be subjective...(Refers to material he has prepared)   ...views are always subjective and all comes down to interpretation.  (Referring to Joel’s previous article) it says, “No matter how well CC&R’s are written, view cases are difficult because they are subjective."...Defining a view could be difficult and become indefensible.  If we write up criteria it still leaves us open to possible litigation.  I think we should not have any reference to views in the CC&R’s.  Views were not in the CC&R’s from 1997, it was not a part of the document that we are working under now and I don’t believe we should consider putting anything about views in there.

Mario:   (Tells about Tree Committee.  Previous Board used Paragraph 28 as a way of getting people to cut down trees so they could have a view...Believes the previous Board had an agenda.)

Joel:   That is what happens when you have a poorly drafted section like that. Then it is abused at some point.

Mario:  ...agree 100%.  We should forget about views.  I don’t believe a person that lives on a lower lot should have that tax on his property that he must maintain that vegetation so the person above could look above his house...   Most municipalities have ordinances against cutting down trees...some have fines for cutting down trees.

Sharon:  Joel mentioned the word subservient and in Number 12 on page 4, the cost of the tree trimming is borne by the view lot...That makes the lower lot subservient.  This man comes and tells me my trees are blocking his view, but “I’ll see that they are cut down and I’ll pay for it.”  What happened to my home?  What happens to my rights?...that makes one lot subservient to another.

Hillard:  That’s why as you will see in Number 13 which I proposed, is that would never happen...If you have a tree that is over two years old...tough.  You are going to keep your tree.  If it gets to be 50 feet high and covers the total view, that’s your right...(explanation continues).

Mario:   Bottom line is, which of these (suggestions/options) can be defended in court?

Joel:   The cleanest one is to clean up what you have and decide what you want to do about trees.  Are you going to get rid of height limitation, impose restrictions on trees for safety purposes if they get too big and branches can break off then you can require trimming.  The more complex you get, the more litigation it will generate, the more controversy it will generate, more fuel for argument, more grounds for disagreement.  That’s what happens.

Hillard:  The point I was trying to make.  This is a mature community and most of these things have been established.  If you said now, “You only get what you bought or what starts with this proposal or what could be determined at the time of the complaint...”  (Continued with example).

Joel:   What you may want to do as part of this thing is have strict guidelines on trees.  Have to go through the A/C.  No one gets to plant any new tree.  Have to submit a plan to the A/C and get control in the future.

Hillard:  I think our concern about that, Joel, is then we put the burden on the A/C to do what we can’t decide here.

Joel: It’s not as big an issue if you just want a tree here and the A/C says, “Well, that’s going to go into that guy’s view”.  Nobody has a vested interest at that point. 

June:   I have heard that most of the new planned communities have put in their CC&R’s “A view will not be protected.”

Joel:  Yes, I’ve seen that.  They are doing that (eliminating view rights in new communities) because of all the problems this has caused.

June:   I don’t want anything in CC&R’s except encroachment, debris and safety.

Peter:  ...I don’t think we should have anything at all in the CC&R’s regarding view.  Bottom line, we can’t defend that.  Even if we could the cost isn’t what the Association should be spending money on.

Marilyn, Hillard, Robert (discussion continues)

Robert:  (Suggests list of acceptable trees)

Mario:   (Has list that was distributed previously)

Joel:   You are on the right track.  Have A/C adopt a policy where these are the approved plant species and have some kind of submission they would make before they plant trees.  However you want to control what trees go in now.   To the extent people who have view now are not going to be diminished any more than with the trees that are there in place at this moment.  These trees shouldn’t impact them that severely. You want to put something out to the membership saying we want to get rid of the tree height restriction.  If you put out something with a complex view procedure it’s not going to get voted/approved anyway.

Mario:  ...I believe not having views in the CC&R’s is appropriate and new planting must be approved.

Jerry, June, Hillard, Peter  (Discussion continues)

Joel:      Trees with invasive branches you can cut it off.  Roots that are invasive and they damage someone’s concrete or somebody’s property you are responsible for it.  Another thing to have in your policy is that there should be some mechanism to require those kind of trees to be pulled out.

Jerry, Marilyn, and Joel:  (Discussion continues: clean up, invasive situations, etc.)

Peter:   ...ready for motion to exclude the word “views” from CC&R’s?

Sharon:  (makes motion) That we not have the word view or define a view in the CC&R’s.

              (Seconded.  Vote taken: six in favor, Hillard opposed)

Marilyn:  Joel should actually do the rewriting of the section.

Joel:   I need some more guidance.  What do you want to do about...do you want a maximum tree height?
 
Marilyn: No.  (Describes Tree Poll taken last year. Says she feels bound by that.)

June:   Is it true that any vote taken of a community is binding regardless of what it is called?

Joel:   No.  (Tape ends.  Sentences missing.  From memory: he goes on to explain there are criteria that must be met such as quorum, etc.)

Joe De Canio: You said in the current CC&R’s it is implied there is protection of a view.  In the rewriting are you going to eliminate the implication of a view?  Owners have asked me to come to their property because “I paid more for this view lot”.  So if we eliminate the implication that is in there (missing words) that would be helpful.

Joel:   That is what the Board has instructed to be done.  There won’t be any reference to a view in the CC&R’s.  We’ll have some restrictions on trees.  It won’t be height. It will be restriction on invasive trees, nuisance tree, trees that are health and safety issues will be addressed.  Plenty of future planning will be limited to specified species or others can apply for approval, that type of thing.  Anything else?

Mario, Jerry, Marilyn (discussion continues)

Jerry:   What type of reprimand for violations.

Joel:  (Refers to enforcement procedure.)

[Marilyn and other Board members thank Joel for his help.  Discussion is concluded and meeting moves to next agenda item]

END OF NOTE ON VIEWS DISCUSSION WITH JOEL KRIGER, ESQ.  **************