RobinL7 (North Carolina)
Posts: 45
Posts: 45
Posted:
A big problem in our LOA. How to make this brief I have no idea.
Landowners moved into a house in the LOA 14 months ago. The house they moved into was fairly new, built in 2013. Upon moving in they started complaining to the board about rainwater runoff to the septic field in their backyard. The board did not realize their sense of urgency as the septic field was not failing and the board thought they understood how underfunded our community is, with the very low assessment payments. The board asked them to do more research and the board would do investigating as well and then come together again to see what could be done. The landowners asked the board to install a large culvert under one of the roads to mitigate the runoff, this would have been a huge expense for our community! The road in question was built in the late 80s, the lot in question was originally part of a large lot, which was subsequently divided into 4 smaller lots, and the lot in question was located in lower lands where a stream and rain water runoff occurred and this property was always subject to flooding. Upon investigation the board discovered that the county only approved a septic field on this smaller lot with specific instructions that a diversion ditch in the back yard of the property must be installed to divert rainwater away from the septic field.
A few months after coming to the board the new landowners reconstructed their driveway and the common land easement as well and installed a new large culvert higher than the road and built up the berm to intentionally redirected rainwater onto the road. The situation has been horrible, this happened in December volunteer landowners had to syphon water off the road to prevent flooding, and the freezing temperatures led to icy conditions on the roads. Obviously the other landowners were not happy.
The land where the culvert is located is association owned land (20ft strip of land), a right of way.
Now we are at a crossroads, the board has asked the landowners who reconstructed their driveway to negotiate with the Board regarding remedial action and they will not. The Planned community Act which is the statue in our state and our association adopted it in its entirely states that If a lot owner is legally responsible for damage inflicted on any common element the association may direct such lot owner to repair such damage or the association may itself cause the repairs and recover damages from the responsible owner. It goes on to say that the Board can become the adjudicatory panel to determine if a lot owner is responsible for damages to any common element etc... It also states that the landowners are entitled to a hearing before the Board (or adjudicatory panel)comes to a conclusion and before fines are imposed.
The board has followed the attorney's advice by hiring an engineer and in his report the engineer stated that the natural flow of rainwater had been altered by the driveway. The board at this point wants to move ahead and write to the landowners informing them that they will need to fix the problem as it has caused flooding that is damaging the associations road and impeding the Board's ability to maintain the road and to protect the landowners in case of an accident caused by the flooding/icy road conditions. The board will offer a hearing for the landowners before fines are imposed to hear any evidence that would prove that their actions were not in violation.
The board does not want to have to investigate whether the move to impose fines is substantiated by legal defense,we have already spent $600 on lawyer's fees and the association's case is sound the Board believes. The fact that the county approved the septic field with the stipulation that a diversion ditch had to be established (which supposedly was done it eroded over time) and that the previous owners never complained to the Board leads to the conclusion that this problem is inherent with the land and is not the association's responsibility. Additionally the culvert and berm is in the association's land and therefore the Board is within its rights to require that the driveway be brought down to the level of the road. Lastly the actions of the landowners have impeded the board's ability to perform it's main function to maintain the roads.
So what do you think of the imposing fines as allowed by the PCA as the next step? Thanks for reading.
Landowners moved into a house in the LOA 14 months ago. The house they moved into was fairly new, built in 2013. Upon moving in they started complaining to the board about rainwater runoff to the septic field in their backyard. The board did not realize their sense of urgency as the septic field was not failing and the board thought they understood how underfunded our community is, with the very low assessment payments. The board asked them to do more research and the board would do investigating as well and then come together again to see what could be done. The landowners asked the board to install a large culvert under one of the roads to mitigate the runoff, this would have been a huge expense for our community! The road in question was built in the late 80s, the lot in question was originally part of a large lot, which was subsequently divided into 4 smaller lots, and the lot in question was located in lower lands where a stream and rain water runoff occurred and this property was always subject to flooding. Upon investigation the board discovered that the county only approved a septic field on this smaller lot with specific instructions that a diversion ditch in the back yard of the property must be installed to divert rainwater away from the septic field.
A few months after coming to the board the new landowners reconstructed their driveway and the common land easement as well and installed a new large culvert higher than the road and built up the berm to intentionally redirected rainwater onto the road. The situation has been horrible, this happened in December volunteer landowners had to syphon water off the road to prevent flooding, and the freezing temperatures led to icy conditions on the roads. Obviously the other landowners were not happy.
The land where the culvert is located is association owned land (20ft strip of land), a right of way.
Now we are at a crossroads, the board has asked the landowners who reconstructed their driveway to negotiate with the Board regarding remedial action and they will not. The Planned community Act which is the statue in our state and our association adopted it in its entirely states that If a lot owner is legally responsible for damage inflicted on any common element the association may direct such lot owner to repair such damage or the association may itself cause the repairs and recover damages from the responsible owner. It goes on to say that the Board can become the adjudicatory panel to determine if a lot owner is responsible for damages to any common element etc... It also states that the landowners are entitled to a hearing before the Board (or adjudicatory panel)comes to a conclusion and before fines are imposed.
The board has followed the attorney's advice by hiring an engineer and in his report the engineer stated that the natural flow of rainwater had been altered by the driveway. The board at this point wants to move ahead and write to the landowners informing them that they will need to fix the problem as it has caused flooding that is damaging the associations road and impeding the Board's ability to maintain the road and to protect the landowners in case of an accident caused by the flooding/icy road conditions. The board will offer a hearing for the landowners before fines are imposed to hear any evidence that would prove that their actions were not in violation.
The board does not want to have to investigate whether the move to impose fines is substantiated by legal defense,we have already spent $600 on lawyer's fees and the association's case is sound the Board believes. The fact that the county approved the septic field with the stipulation that a diversion ditch had to be established (which supposedly was done it eroded over time) and that the previous owners never complained to the Board leads to the conclusion that this problem is inherent with the land and is not the association's responsibility. Additionally the culvert and berm is in the association's land and therefore the Board is within its rights to require that the driveway be brought down to the level of the road. Lastly the actions of the landowners have impeded the board's ability to perform it's main function to maintain the roads.
So what do you think of the imposing fines as allowed by the PCA as the next step? Thanks for reading.