Road right of way improvement being forced by ARC/HOA board

I am currently in a dispute with my ARC/HOA board over a drainage swale that exists in the townships road right of way. There are 31 homes in our subdivision and only 21 have their drainage swales filled in with a drainage pipe, dirt and seeded with grass. My neighbor and I just built our homes and the last time someone built in the neighborhood was years earlier. The ARC requires us to submit landscaping plans before beginning any work. We've submitted them and they've rejected them because they say we have to agree to fill in the drainage swale on the plans before they will approve. I did my research and found that we do not own the swale as it is in the township right of way. I got a surveyor and he marked my property pins which match the subdivision Plat and the pins also show that I don't own the swale. I've also had the county engineer come out and confirm this. The bylaws and covenant do not state I have to fill this in. I've asked why other properties are not required to do the same and they will say in person they are "grandfathered" but will not put it in writing. I've requested all the updated bylaws and meeting minutes from the property management company and no properties have been grandfathered. The cost to do this is between $10k to 15k. I have stated that I cannot be forced to spend money on property I don't own. They've consulted the HOA attorney who sent them the subdivision Plat which confirms my property lines, but is still telling them they are well within their rights to enforce this. I believe the lawyer is incorrect. The Plat shows the road (including the townships road right of way) as being 60' wide and the pavement in that area is only 20' wide. The lawyer states I own up to the road edge. The lawyer thinks the paved road is 60' wide and says I own to the road edge. I've told the HOA the road edge is to the right road of way edge and they keep saying it's the paved edge. I've had it professionally marked and they don't care.

This swale issue is also being unequally enforced with only 21 of 31 homes having it filled in and they all did it voluntarily. I've quoted the Covenants which says that the subject property to which the the Covenants apply to are inclusive of all the real property on the Plat "Except for the road right of way which have been dedicated to the township roads." All members said I do not need a permit to fill in this swale and admitted they did not get one. The county engineer said I do and they needed one as well. I told them this and they said I could just do it and the county doesn't want to be involved and would just look the other way. The engineer said that he could force anyone who does not get a permit to dig it up under the owner's cost and then they'd have to pay to reinstall it under his supervision to ensure it's done correctly. The board is an old boys club where they look out for each other and ignore enforcing simple rules on each other. When I asked where to find the info on needing to fill in the swale I was told the bylaws are like the Bible and open to interpretation for us to enforce the rules however we want.

I am at a loss for what to do now. I presented my case 3 times in a professional and respectful manner. I met with them last week and they basically said you can either do it or get lawyers involved in which no one wins. I feel like they are simply daring me to sue with the thoughts that I won't go through with it. I don't want to because I am aware of the animosity it will create with the board and neighbors. The board said that once I agree to do it they are going to make everyone else do it too. It makes no sense that I am the one holding this up for them to enforce it on the other properties. They could be doing it simultaneously, which also makes me think they are going to make me do it, then they'll say they can't force existing home owners to do it. Also, the neighbors who have lived there for years who do not have theirs filled in do not know that the board is considering making them fill theirs in if I cave in. They would also have to spend the 10k plus to do theirs. This dream home my family and I have built has turned into a nightmare for us. I keep stating that I'm not trying to be difficult, but the Covenants appear to protect me from having to spend an excessive amount of money on property I do not own. I'd rather spend the money to finish my basement which has real appraised value. Any insight on how to handle this or what to do would be appreciated. Does it sound like I am making a sound case and are they are over stepping the power? It seems like unequal enforcement as well. Thanks for reading and any help you can provide.

You may want to consult an attorney for this because you're have to have someone pore through the governing documents and possibly the county records to verify who owns the area and who's responsible for it. I know that's another expense you may not want to pay, but if people are saying things and not willing to put them to paper or the county would "look" the other way, I guarantee there will be some blowback if you proceed as you want and it may not be pretty.

(By the way, I might consider reporting that county engineer - it's completely unprofessional to suggest that the county will or won't "look the other way. That may very well be true, but the appropriate response would have been "according to my findings, you need a permit, but if you're having a dispute with your HOA, I can't really help you with that)

Thank you for your response. It's actually the board saying the engineer and the county will just look the other way. The engineer is stating that I must have a permit. I don't want to fill in the ditch or spend the 10k to 15k to do it. The board is essentially giving me advice to break the county's laws and go ahead and proceed without the permit to save some money. The county engineer says I need to have professionally engineered drawings for him to approve before beginning construction in the right of way if I wanted to fill it in. Again, I don't want to, but I can't begin landscaping because they are holding my landscaping plans hostage until I agree to do it. The county Engineer is doing everything by the book while the board is telling me to just do it without the permit the engineer said is required. Very arrogant of them isn't it?

I was afraid that I may need to get an attorney as you've suggested. My other thought is gathering the neighbors who don't know they are about to be forced to do the same and see if they want to fight it together. So far, it's been one vs. five. We could out number them with people fighting it and possibly share lawyer costs. Thank you again for listening and replying.

Have your attorney send a 'demand letter' to the BOD's registered agent requesting BOTH:

Verification of above 'saying'

and

written requirement(s) for work 'demanded' citing Covenant 'chapter and verse'.

PROBLEM SOLVED

Before hiring an attorney I would send your info with regards to Plat (showing you DO NOT own the property), letter from local government stating they will not allow filling in the area, and your past Association requests and responses, etc. and send it CERTIFIED RETURN RECEIPT to your Association Board. I would inform them you are requesting a reversal of prior denial based on the attached "LEGAL PLAT" and documentation from your local government denying the requests to fill in the swale area.

Sometimes when the Association has to SIGN for a Certified Letter it will get their attention that you are tracking everything and they should tread more lightly vs telling you to totally disregard the local laws.

If that fails with the documentation you have ... as PitA stated you can have an attorney write a demand letter.

Without being able to see the documents and plats it would be virtually impossible for us to form proper thoughts. From your statement and if accurate I would lean towards agreeing with you. Good luck and let us know outcome.