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Article Courtesy of The Palm
Beach
By Mike Diamond
Published November 21, 2020
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The 272 mahogany street trees at Tivoli Lakes will be around for a while longer
— at least until a judge decides whether they can be taken down.
TREE (Tivoli Residents Environmental Enthusiasts) recently filed a lawsuit
seeking a temporary injunction to block their removal, raising the contentious
dispute at the west Boynton Beach retirement community to a higher level. The
residents group went so far as to individually sue the members of the HOA board.
“These legal actions are costing the community thousands of dollars, which will
not be reimbursed by insurance,” the board told residents in a recent email.
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HOA bylaws require
that all of the homeowners vote on the issue, according to
the lawsuit. The HOA claims that is not necessary because
the $240,000 expense involves maintenance, and is not a
capital expense.
In the email to residents, the HOA reported that it decided
to “temporarily postpone” the Nov. 2 planned start of the
four-to-six-week project in light of the recently filed
lawsuit.
Concerned about ongoing maintenance issues and the damage
that the mahogany/canopy trees cause to streets and
sidewalks, the HOA argues their extensive root system has
created an unsafe situation. Tivoli Lakes is currently
defending two slip-and-fall lawsuits resulting from root
damage to its sidewalks. The HOA has been trying for more
than a year to remove the trees but has been thwarted by the
residents’ group. |
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A row of canopy trees at Tivoli Lakes that is expected to be removed as part
of a plan to tear down trees whose roots are causing damage to curbs and
sidewalks.
Paver repairs at Tivoli Lakes. A worker removes pavers that have been
damaged by the roots of a mahogany tree.
“As soon as the matter is assigned to a judge, we will seek to obtain the
earliest available hearing date,” the HOA said. Board President Robert
Eisenberg told The Post he expects the delay “to be a modest one.”
The residents group argues the high maintenance costs are because of the
mahogany trees being improperly maintained and that replacing them with
foxtail palms will offer far less absorption of carbon dioxide from the
atmosphere and much less shade.
TREE forced the HOA into mediation this year after it hired attorney Barry
Silver. When mediation failed, the HOA hired a contractor to remove the
trees.
At one point, TREE supporters suggested residents park their cars in front
of the trees to block their removal, a suggestion that Eisenberg warned
would result in the HOA calling in sheriff's deputies if it ever was
implemented.
At Tivoli Lakes, the bylaws say that any capital expenditure more than
$50,000 must be approved by 55% of homeowners at a community meeting. At
issue is whether the work is maintenance or a capital improvement.
“All my client wants is a communitywide vote,” said Silver. “We will abide
by the outcome. There is no reason not to have the vote as the HOA claims
the majority of residents support what the HOA wants to do. Let’s see if
that is true.”
The problem for the HOA, according to Eisenberg, is that too many residents
do not vote in these special elections, sometimes making it difficult to
obtain the necessary 55% threshold.
The case could have repercussions throughout Palm Beach County as a number
of other west of Delray Beach and Boynton Beach communities have taken the
same position as Tivioli Lakes — that a community vote is not needed. Other
communities are also expected to remove their street trees in the coming
months.
When Tivoli Lakes was built 14 years ago, the county code required that
street trees be placed between the sidewalks and the main boulevard of the
324-unit retirement community. The code has since been changed; builders are
now barred from planting trees within 10 feet of a curb or sidewalk. The
county has also been allowing communities such as Tivoli Lakes to remove
their street trees.
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