These definitions contain the key elements and criteria that are used by federal and state agencies, as well as federal and state courts:
DEFINITION OF “NATURAL VEGETATION”
Short Definition
Natural/Semi-Natural
vegetation refers to types
dominated by native or naturalized plants that have not
been cultivated or maintained by any management or
manipulation regime. Planted/Cultivated vegetation requires
intensive management or manipulation to maintain (fruit/nut
shrubs, trees, and vines; ornamental or hedge plants near
dwellings or clearly marking a boundary). Plant growth may
result from human disturbances but is closely analogous to
“natural” succession; this should be considered
Natural/Semi-Natural, as with any case where cultivation is
in question. Naturalized plants are previously foreign
species that have established in and conformed to an
ecosystem, whereas (undesirable) invasive plants typically
dominate vegetation and displace natural plants and disrupt
ecosystem processes.
Long
Definition
In areas historically
modified by humans, Natural/Semi-Natural
vegetation is
distinguished from managed or Planted/Cultivated vegetation
types. The former refers to areas dominated by native or
naturalized (established) vegetation that has not been
cultivated or treated with any annual management or
manipulation regime, generally having a strong component of
native species or their analogs.
“Planted/Cultivated” refers to areas dominated
by vegetation that is treated with annual tillage, modified
conservation tillage, or other intensive management or
manipulation (fruit/nut shrubs, trees, and vines with
regular and consistent plant spacing; active/fallow row and
close-grown forbs, grasses, crops; ornamental or hedge
plants near dwellings or right-of-ways clearly marking a
boundary).
Judgments about naturalness
must consider the context of ongoing dynamic changes in
vegetative associations over ecological time. Some
successional stages result from human disturbances but are
close cognates (analogs) of “natural” secondary
successional stages; these should be considered
Natural/Semi-Natural, as with any case where it cannot be
assessed whether the vegetation was cultivated by humans.
Therefore, naturalized refers to a previously exotic or
foreign species which has established in and conformed to
an ecosystem, whereas invasive aliens (weeds) are typically
the dominant stratum of vegetation that displace natural
plant communities and disrupt ecosystem processes.
TREE–HEDGE DISTINCTIONS
Definitions of “hedge” are very similar because
they attempt to consolidate the three themes of function,
form, and cultivation:
1.
A hedge
functions as a fence:
-
As a visual, physical, or sound barrier.
- For delineating property by
residing on or next to a boundary.
- Example (WA State):
“A living hedge of sufficient density to prevent a
view of the confined area may be substituted for such a
wall or fence.” (Rev. Code Wash. (ARCW) § 46.80.130
(2003))
- Example (federal and
state): fence, wall, and hedge fall under the same
structural type, with hedge defined as “a continuous
growth of shrubbery planted as a fence, a boundary or a
wind break.” (U.S. Digital Geographic Information
Standard)
2.
A
hedge’s
form is linear and continuous in length and height:
-
Hedges are subject to similar height restrictions as a
fence.
- Fences and hedges usually
intend to form barriers from the ground up.
- Individual elements of a
hedge may be referred to as shrubs or trees when the
typical growth form of the species is a shrub or tree; the
critical point is that the growth form is maintained as an
element of a hedge by cultivation of size and shape.
3.
A
hedge is
intensively maintained or managed (cultivated):
-
After initial growth, hedges are trimmed frequently enough
to maintain dimensions, regularly and at intervals of one
or several years, not at decade intervals.
- Regular hedge trimming
typically results in multi-stem plant growth in multiple
directions, whereas trees typically grow more vertically
from a dominant stem. Hence, from an early stage hedges
must be continuously “topped” to remain hedges,
whereas trees should never be topped. The greater the
multi-branching, the more likely hedge origination, whereas
more single-stemmed plants with lateral branching are more
tree-like.
- In more agricultural and
rural settings, hedge-like plantings become larger, are
much less managed, and assume a different function,
frequently referred to as windbreaks or shelterbelts.
INTERPRETATIVE
CONTEXT & CONSTRAINTS
Trees, shrubbery, and hedges are consistently distinguished
in policy and law, but formulating and implementing hedge
policy is complicated because hedges are a continuously
growing substitute for a fence (static structure). The
elements of a hedge are individual plants, most often
shrubs, but also species growing as either a tree or shrub.
Therefore, these are the most common considerations
discriminating “runaway” hedges from trees:
A.
Historical Context: Were the plants
initially and intentionally planted to mature in the form
and function of a fence? Were plants so
cultivated?
-
The issue is not number of plants but whether the hedge
substitutes as a significant length of a boundary as is
common for fences.
- Do plant species typically
or readily assume shrub growth forms intended for hedges?
For example, many junipers do, but Douglas fir does not.
- More slowly growing species, taking decades to grow and
form a fence-high barrier, would be unlikely candidates for
our hedge definition.
- Do plant species typically
grow in a ‘group’? Some tree’s trunks
split underground. Birch trees often grow and thrive in
threes (termed a “specimen”). “Mass
plantings” may be distinguished from hedges because
they can be of any plant and plant form, of any shape or
height. Tree elements can be pruned and no longer be a mass
planting because they no longer cut off light, air, and
view.
- Has a runaway hedge ever
been obviously topped along its length
(“crew-cut”)? Then it was more likely to have
been historically intended as a hedge.
- Have neighbors previously
requested hedge maintenance or have they accepted unmanaged
growth years after it grew above fence height?
B.
Legal and Regulatory Context: Much
ambiguity can be resolved by intentions and corresponding
regulations of CC&Rs.
-
The covenants are contractually binding. Carefully examine
references to ‘view,’ ‘natural,’
etc. in the Covenants.
- Carefully examine history
of regulations to for use of terms such as ‘natural
vegetation’: “Natural/semi-natural vegetation
refers to types dominated by native or naturalized plants
that have not been cultivated or maintained by any
management or manipulation regime. By contrast,
planted/cultivated vegetation requires intensive management
or manipulation to maintain (fruit/nut shrubs, trees and
vines; ornamental or hedge plants near dwellings or clearly
marking a boundary)...”
- Restrictive covenants
should be “strictly” construed (or they would
have been worded less restrictively). If there is any
doubt, the definitions of terms used in a restriction
should be construed based on the intent of the parties as
reflected by the language of the entire declaration
(CC&Rs). Beware of case law frequently cited for
definitions and judgments on hedges, because typically that
is necessitated by the absence
of
such definitions and intentions in existing declarations.
- In many cases, if
regulations require landowners’ duty of care
(maintenance of height and shape) and the hedges acquire
another (natural) growth form, than they are no longer
hedges; that is, in the sense of owner’s liability.
For example, should long-term neighbors happily accepting a
row of trees on shared boundary have that arrangement
reversed when property changes hands? A prospective buyer
has full disclosure of the CC&Rs and of the current
tree-like growth forms on neighboring properties.
Alternatively, perhaps lot owners, building long after
purchase, have accepted boundary growth of trees up until
they build, at which point they try to maximize view. Is
that too late?
C.
Building/Landscaping Constraints: The outcome of
forced spatial arrangement.
-
Building envelopes, including driveways, walkways, and
parking areas are centralized on lots due to setback
restrictions.
- In any particular case, is
the building-envelope to lot-size ratio large, thus
confining remaining vegetation and new plantings to a
narrow perimeter band of vegetation?
- If so, then remaining trees
on the lot, along with all other tree plantings cultivated
or not, will be relegated to the lot periphery. Being near
the boundary “natural” or
“semi-natural” trees could be erroneously
interpreted as overgrown hedges due to forced geometry.
D.
Ecological & Land Management Constraints:
-
Local conditions such as slope, soil stability, and erosion
may influence desirability of high vegetative density,
which should influence assessment of plant spacing and
configuration.
- Groups of trees are much
stronger in winds, whereas solitary trees are more prone to
breakage. In more wind-prone areas, natural thinning over
successional time naturally results in more tree grouping
or tree stands.
- Trees on and near banks,
bluffs, and steep slopes are of the highest priority for
preservation and this topic is thoroughly considered and
promoted by many Washington agencies and organizations. For
example, madrone and Big-leaf maple are valuable soil
stabilizers.
- Modification of hedge/trees
is decided lot-by-lot. However, the cumulative effects of
many individual actions may result in the
“moonscape” syndrome, an unnatural and scarred
looking landscape.
REMEDY
AND RESTORATION (a few
examples)
Hedge/tree issues are inherently neighbor issues in which
one neighbor requests other neighbors to alter their
property (landscaping) against their wishes. The atmosphere
should be neighborly, not heavy-handed or coercive.
1.
Of
course, the first step should be educative with neighbors
having ready access to complete documentation and
background of the CC&R background and rationale,
including examples.
2. The second step
involves peculiarities of the case, which might require
in-depth explanation and interpretation of the CC&Rs
and address unique conditions of the site. If so, then
expertise from the Environmental or Tree Committee should
be offered by way of consultation and potential
remedies.
3. Neighbors may
agree that what was once clearly a hedge is now operatively
an extremely high row of trees that cannot be treated as a
hedge. The crux of the problem might be reduced to the
question: How much pruning will transform barrier boundary
trees to a mere row of windowed trees (say, from 8 feet
up)?
-
Runaway hedges being considered as trees should be treated
as trees; they should never be topped. The more hedge-like
in origin and current condition, the less this is true.
- Windowing (pruning) should
take care of most situations. Thinning (selectively
removing some trees) may be required.
- Even if trees were trimmed
and pruned so as not to contact each other or form a
barrier above 8 feet, they could still form a substantial
view barrier. Should windowing allow a target percentage of
unobstructed view, say 50% of boundary line, and the
neighbors could agree on the exact distribution of
windowing depending on most favored view angles, for
example?