Nov. 15, 2013 -- After a Florida man says he was fined $100 a day, or $5,000, for having two Magnolia trees that were too short, his homeowners association is defending itself, saying it's not just the height that's the problem, but the number of trees.
Patrick Fitzgerald, 51, said he planted two small trees by his home in Merritt Island, Fla. a year ago. Now he and the River Grove Homeowners Association have undergone legal mediation and some heated words in which he has called the board "idiots."
"This has gotten so carried away it is absolutely ridiculous," the HOA president told ABCNews.com. "To me it's ludicrous."
The association board, which is a group of volunteers, says there is a rule that trees must eight feet tall in the right-of-way, a thin patch of lawn between the sidewalk and the road that is a few feet away from Fitzgerald's property. But the board's main problem with the trees, its president says, is the aesthetics of the area and that there are too many -- more than what the landscaper's plan allows.
Fitzgerald, who says he just wanted to plant more trees because he believes an overabundance of fertilizer is killing his other trees, said he regrets that the dispute led to mediation, spending almost $2,000 on lawyer and mediator costs. But the reason he agreed to pre-suit mediation was to avoid going to court.
"Trust me, I didn't want to spend almost $2,000 to protect two trees," Fitzgerald said.
Fitzgerald's lawyer has drafted a proposal that forgives the $5,000 fine if he digs up the trees in 20 days, the association said. Fitzgerald said he will dig up the two trees this weekend and put them in pots.
Seth Chipman, an attorney for the homeowners association, says the dispute is over both the spacing of the trees as well as the size of the trees.
The homeowner association's guidelines, or its declaration of covenants and restrictions, requires the trees to be at least be eight feet in height, and it also adopts a "treescape plan."
"This particular homeowner's association plan has developed so there are large majestic trees lining the streets," Chipman said. "If you drive through the homeowner's association, that vision is coming to a reality. Throughout the association there are live oaks and magnolia trees that are 10 to 15 foot height. They've taken root and are getting pretty big, so they don't want minor seedlings being planted."
The association board maintains that if Fitzgerald had filled out an application to the HOA's agricultural review committee, or ARC, the issue would not have needed mediation.
"That was never done. The trees were planted and all correspondence about the trees were unanswered," the board president said.
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The regulation language provided by Chipman to ABCNews.com states that "the term 'trees' shall mean and be defined as any tree eight (8) feet or greater in height" and "the trees used in landscaping shall be chosen by the builder/owner and approved by the ARC and shall be a combination of tree styles and types which comply with County Landscaping Ordinance and governmental regulations."
The head of the board a year ago sent Fitzgerald an email after he planted his trees, which were about a foot tall at the time, to remove them, the association said, but he did not respond.
"In this case, this particular homeowner already has two magnolia trees that are of size. And so the association is saying, look you already have the two trees in the treescape plan, we don't want tiny seedlings. That's their prerogative," Chipman said, adding that Fitzgeralds bought the house knowing about these regulations.
"It was not some secret sprung on them last minute," Chipman said.
Fitzgerald admits that he did not read the entire 100 or so pages of the homeowner packet when he bought the house.
"I don't know about you, but I didn't go through every single page," Fitzgerald said.
After additional letters, the association board told him that it was going to begin fining him $100 a day, up to $5,000. In response, he sent a letter calling the association "idiots," asking the board's attorney to contact him.
"He mailed a letter to everybody in the neighborhood except the people on the board, saying how this board is pitting neighbor against neighbor. You know how much of a response we got from those letters? Zero," the board president said.
The two trees in dispute are now about 22 inches tall, the board president says.
"They're two little trees -- not even trees -- saplings," he said.
"It's not so much the size, as that there are too many. Nobody ever said that," the board president said of the right-of-way next to Fitzgerald's house. "No one has ever said anything to anyone at anytime about a tree planted in their own yard."
To help maintain the right-of-way, individual homeowners are given a landscape stipend and are responsible for mowing specific areas.
Homeowners are responsible to fertilize and maintain a tree in the right-of-way, the board says.
"It's funny, I don't have the right to plant a tree in front of my house," Fitzgerald told WESH. "There's something wrong there."
The board asserts that mediation was not necessary if he had dug up the trees.
"[Fitzgerald] has one that is only 5 feet tall and we have not asked him to remove that. We have not said anything about that. We're not a bunch of idiots. We're just a bunch of neighbors trying to keep property values where they are," the board president said.
"All he had to do was move his trees two feet into the other side of his property. He may think it's his property but it's HOA's," the board president said. "Yes, he has to take care of it."
The board says the issue is not about the $5,000 fine.
"In mediation, we told the mediator, we don't want his money," he said. "We don't want the $5,000. We just want the trees removed. He can put it anywhere on his property just not there."