Developer land rights being denied?

Bruce, generally development within a city must be approved by a planning commission and city council before construction begins. They can and do require the developer to meet certain conditions as part of their approval. Why not turn over the common area? Don't fight city hall

BruceH2 - Wow!! A post by the Developer, that's very new, and welcome by me, from what I've seen on HOATalk. I gather there was a Developer's Agreement signed by you and the borough? I gather you had to post a bond with the borough, to be returned to you as phases in construction are completed in accordance with a set of approved plans, correct? I gather you are working with the borough's municipal clerk and building code construction official? Just curious because it establishes your responsibility to complete the project in accordance witha set of approved plans, and agreements. Eventually "as builts" will need to be provided as well?

You, as the Developer are the HOA right now, correct? Meaning, you hold a majority of the votes in the community and seats on the Board? If this is the case, write the letter yourself, along with the HOA owners on the Board approving the the private road.

On a side note, if your PUD was in New Jersey, the width of the road would not prevent the HOA from seeking municipal reimbursement from the borough for what it would cost the borough to snow plow and ice the road. What state are you in, maybe your state has a similar law like NJ's Kelly Act, Municipal Services Reimbursement? I know you say it's an impssibility but you should check anyway. The Developer often gets a bad rap in PUD's and is often misunderstood. However, the HOA owners are paying taxes to the borough for municipal services and HOA maintenance fees for roadway maintenance, repair, and replacement which in NJ is considered double taxation.

Correct on most points. Yes, the city and my company have the standard developer agreement and I had to post performance bonds that are still in place and being reduced as I finish everything up in phase 1. All the infrastructure work (water, sewer, stormwater) is all inspected by Metro officials and before the bond is permanently released my engineer will have to provide "as-builts". All that is going on as we speak.

But, as developer, I started the transition process of turning over control of the association to the HOA about a year ago. I'm still the HOA president but I only have one vote. Though I still own the road and common area, I only have one vote in the HOA. This group of owners has been a pill...don't want to follow the covenants, don't want to collect dues, won't even balance the checkbook. So I recently persuaded them to hire a management company in hopes that will get them on track. That's all really a different issue. Yes you are right about being misunderstood. Having to play the heavy and enfore the CCRs in the control phase, especially in a small neighborhood populated largely with first-time homebuyers, makes the developer a pariah.

The issue for my company is since I haven't quit claimed the common area and the road to the HOA, I still own it and what business is it of the city if I want to extend into my adjacent property for which the subdivision plat has already been approved? Its a PRIVATE ROAD. But the condition that was put on the plat approval for phase 2 requires amending the covenants and, while the majority of the HOA is fine with that, there are enough bad eggs in the small neighborhood that we don't have the 75% approval required to do it. So I'm going to have to challenge the condition as illegal if I have to...if I still own the road how can anyone tell me I can't extend it? Fortunately the Planning Dept is on my side and may remove the condition on their own...its Public Works that is the problem. Its all politics, CYA, and I am stuck in the middle paying the bills.

BruceH2 - Will the private road you wish to build provide access to the one home on the one lot yet to be built , will that homes' driveway be immediately adjacent to road? If so, who's going to buy the home once it's built, and how will the borough collect taxes on that home. Doesn't make sense that the public works is doing right here, I think a meeting with the mayor and his/her borough clerk are in order. Otherwise, time to get the attorney to write a letter with your position and intention to finish the job you started. As for the holdouts in the HOA, you never really know the cause of owner turnout and response. Perhaps a meeting with the community explaining the benefit of the road to their HOA is in order. Best of luck.

BruceH2 - Thanks for the clarification, very interesting situation, hope it works out for you and the road gets built. If you don't mind, what state are you in?

Bruce, you might want to get some pictures/graphs of the area from the county property appraiser. In my county it is all online and you can quite easily see the plat number for the road in the neighboring gated community. It is thier road, they own it and it shows. Make you point visually and say how is this any different then if I wanted to merge these two plats?

I worry about your buildig the roads NOT to the city's standards. I believe your thinking is that since the roads don't fit the criteria to be a city road, that they can never accept responsibility for it and thus it must stay a private road. NOT necessarily true. Our HOA, the streets were originally private. They absolutely do NOT fit into the City code. They were designed by the county rules since it was originally in the county.
However, at original build time, the HOA shared ONE water meter. That meant the HOA was responsible for paying for the water, repairs of any leaks, and could turn the water off to any household NOT paying their dues. As you can imagine the repair bills were breaking the bank and not everyone used water equally. So the HOA decided to go to the city and get SEPARATE water meters for EACH home. The city in turn said "Yes" but ONLY if we turned our streets PUBLIC. That way they could access the road to do necessary repairs. A blessing to us. The HOA had to have a special assessment to raise $20K for the work. The roads were then turned over to the city.
When we turned the roads over, we now had to obey the city laws on our streets. They tore down our wood carved street signs and put up regular green signs. We had to cut down trees so the signs could be read in some areas. Speed signs went up. Mind you our HOA does NOT allow for signs except for For Sale/Rent. We also had to rewrite our CC&R's to integrate the changes to being public roads and separate water. That cost us 2 years and $1,500 in legal fees.
The streets were soo narrow that fire trucks and ambulances could NOT get through. This let one person who had a heart attack STUCK in the middle of the road for almost a 1/2 hour. He did pass away at the hosptial later. Our garbage often did NOT get picked up because a car was blocking the way and the truck couldn't get through. Often we would get reports of people's cars being scratched or mirror broken off if 2 cars parked on either side of the roadway. (NOT against the law). We finally had to go to the city and get one side of the road painted RED to indicate an emergency lane. We had to get special approval and a code written to allow the curbs to be painted instead of signs put up.
This is what our HOA had to face when our developer made the roadway to their "idea". You don't know what the future holds. Plan for the worst case scenerio which could be the streets turning public one day. NOT every HOA wants to stay together. If they ever do disband, the roads won't be taken care of by anyone if they are public.
As far as the HOA needing to agree to the roads NOW in your phase 2. You are the HOA at this point. You own controlling interest and represent the HOA until you turn it over. Your title may be developer but it doesn't mean that you aren't a homeowner in association with yourself. A HOA is only formed by property owners and your the main property owner. Go to the city and find out their terms and negotiate from there. You may have to try to make an "ordinance" if you have special conditions that will allow you to keep doing what your doing.

Hi Bruce:

Best of luck in this, it sounds like you're caught in a political connundrum. I'm wondering if the council person is acting in manner that would/could be construed as a conflict of interest? That might be worth checking out. Maybe a contribution to his re-election fund would grease the skids? Ask your attorney...

Melissa, in Oregon, if the HOA has streets not built to the standard city or county code, they are private; however, the city/county will mandate certain standards for the streets, including that they need sufficient clearance for emergency vehicles, per the Uniform Fire Code. This means that they may be posted as no parking areas, which would be enforced by the HOA (and normally that would be required in the association documents). This end up meaning that the HOA gets cars towed that do not follow the no parking zones, which prevents the ambulance from getting stuck, etc...I'm wondering if your HOA could be sued for not keeping the streets clear? Something to consider.

J. Patrick Moore, CMCA

Okay, okay JM2, you're dead on to Melissa about emergency vehicles etc but the advise to Bruce "contribution to his re-election fund", and"Ask your attorney..." is way off base. Oh yeah, the attorney will advise a client that graft is okay. Enough with the crap here, it's a little disturbing. The guy is a developer, doesn't need to mire himself in the mud and grease the wheels when he has the legal ammo he needs. That kind of advise is embarrassing.