Wetlands within HOA Property

Howdy y'all

Here is the deal: After hurricane Matthew (2016) struck, several trees fell on my lot from the surrounding wetlands. The tree cutter then noticed 3 loblollies (ca. 45' high) leaning towards my lot and suggested to fell them. Loblollies will grow to 90' at maturity and never straighten out. I called the US Army Corps of Engineers (ACE) that gave permission provided I leave the timber on the ground and do not grind the stumps.

A new HOA board (2021) by letter from our PMC forced me to remove the timber under the threat of a $25/day fine, claiming the wetlands are common grounds under their governance. Nowhere in our governing documents does it bestow upon the board that governance. ACE affixed signs that say "do not disturb!"

I paid $500 to have the timber cut and removed, and plan to go to magistrate court to recover my expense (not much hope) from the PMC that should have known better. Their retainer must be ca. $2,000 and ergo the property manager may prefer to settle for $500 indeed. We'll see!

Duly noted, godspeed.

PS Does a statute of limitation apply here (3 yaers in SC).

It sounds like there is some confusion over who controls the land. The only document bestowing governance of the land by the HOA is probably the plat. If the HOA owns it, it is common property. Of course, they would still have to follow any federal laws protecting the wetlands. It is very possible that they are not familiar with the ACE rules.

I am not a lawyer but I would be surprised if you can recover the cost of removing the timber. If it was illegal for the HOA to order the timber removed then it would have been illegal for you to remove it. I do not think a court is going to make anyone reimburse you for carrying out an illegal act, however unintentional it may have been. Another defense the HOA may have is that you suffered no harm. You paid someone $500 to remove the timber and the timber was removed. Where is the harm?

It will be interesting to hear the outcome. Good luck.

Friends and HOAs' foes:

Here is the ACE position based on policies made long before the advent of rotten HOAs. Today though they allow HOA "control" provided the CC&Rs bestows upon its board that governance. Our governing documents differentiate Property from wetlands see (d) below and nowhere does it say their rules for common grounds apply to wetlands. You didn't address the question of statute of limitation: it is 3 years in SC for financial claims! Unfortunately our board is tyrannic and fined me $25/day. Owners are getting gaslighted, if you get my drift..

From the US Army Corps of Engineers communication:

As general guidance, Wetland Restrictive Covenants prohibit work in preserved buffers and wetlands with several exceptions. Of the exceptions are the “removal or trimming of vegetation hazardous to person or property or of timber dead of damaged due to natural disaster.”

From the CC&Rs "Exempted Property" from assessment, page 28:

The following property subject to this Declaration shall be exempt from Assessments created herein:

(a) Any portion of the Property dedicated to and accepted by a local public authority;

(b) The Common Property;

(c) Any portion of the Property owned by a charitable or non-profit organization exempt from taxation by the laws of the State of South Carolina.

(d) Any wetland, marshland, conservation/preservation area as shown on a recorded plat

Kyrie Eleison.

Hey Melissa,

Your opinions are always well appreciated.

I am considering going to magistrate court under the SC Homeowners Association Act of May 17, 2018. The cost for filing is $70 and the case is heard with little delay.

SECTION 27-30-160. Jurisdiction of magistrates court.

Pursuant to Section 22-3-10, the magistrates court shall have concurrent jurisdiction to adjudicate monetary disputes arising under this article, provided the dispute meets the jurisdictional requirements of Section 22-3-10.

As for the USACE most people call ACE, I have already filed a complaint below. If our BOD acts improperly, our ByLaws state the association ain't liable for the cost of litigation, and I have a $1,000,000 umbrella policy if I'm getting sued, libel and what not. I sued the Countryside FPD years ago (Lincolnshire, IL), won a $330K judgement after 4 years, the FPD chief was forced to resign and it lowered property taxes to 400 homeowners (about $200/year) and more for businesses.

Kyrie eleison, Me

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Letter to:

Mr. Tommy XXXX
Chief, Northeast Branch, Deputy Division Chief U.S. Army Corps of Engineers

Dear Mr. XXXX:

Pursuant to your email below, I checked our HOA governing documents and they do not bestow upon the HOA governance over wetlands (see my letter to ™ attached), our CC&Rs make a clear distinction between wetlands and "common grounds/areas" indeed.

For "aesthetic purposes" ™ has clear-cutted/bush-hogged large portions of our wetlands, i.e. behind lots of board directors (lots XX, XX, XXX &c. see map attached) and around retention ponds eroding the banks. At lot XX the owner has dumped concrete debris behind his dwelling (possibly over wetland!) and by lot XX an owner also dumped concrete debris alongside the pond. ACE posted signs disappear, I bought two of them from DHEC for replacement by my lot XX.

By lot 76 after hurricane Matthews, ½ of the tree fell on my lawn, the other ½ leans dangerously over the road. I signaled to ™ it should be felled, my advise fell on deaf ears!

Our xxxx BOD is inexperienced, the five volunteers have all been here only from 0 to 3 years and have no knowledge, except hearsay, of what the BOD/DRB and ACE verbally allowed owners to do after the hurricane. For additional information you can always contact our HOA manager, Mr. , his address is mentioned in my letter attached.

Consider this letter as a formal complaint of ™ "DISTURBING THE WETLANDS" and request the above issues and maybe others mentioned above to be addressed by ACE. An inspection of our wetlands by ACE is warranted.

Needless to say I consider the HOA has maliciously fined me today for what ACE had allowed me to do in October 2016 and as you can imagine has caused severe emotional distress to myself and my spouse.

Thank you for your time and consideration.

Yours truly,

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I just saw that the HOA fined you. Sorry I did not see that before. That does change things a bit. I do think it is appropriate to have the fine removed.

Where it stands now, I wrote to the PMC to consult with the association attorney and I'm awaiting her opinion.

Kyrie Eleison

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July 21, 2021

Management Team:

Following hurricane Matthew (2016) ACE gave me verbal permission to fell hazardous trees tilting over my property (lot 76) as per their policy below, and to leave the timber on the ground and not to grind the stumps, our landscaper confirmed that SOP to me.

The BOD letter (Nov. 12, 2020) attached claims the wetlands are common grounds over which they have jurisdiction: The assertion is in conflict with our governing documents that do not expressly bestow upon the BOD regulation privileges over wetlands (see Oct 6, 1999).

Accordingly, from 2016 on no complaint has ever been filed in writing to ACE or the PMC by any owner (BOD/DRB) included, as per HighWood policy: viz. the BOD letter is not justified. As an aside, the statute of limitation for claims is 3 years in South Carolina, and with no complaint there is no violation to be addressed!

The present is a request for a comprehensive review and opinion by our association attorney, , Esq. as I may seek reimbursement of the $500 expense incurred for removing the timber under duress and threatening fines.

Yours truly,



From the US Army Corps of Engineers policy (ACE):

As general guidance, Wetland Restrictive Covenants prohibit work in preserved buffers and wetlands with several exceptions. Of the exceptions are the “removal or trimming of vegetation hazardous to person or property or of timber dead of damaged due to natural disaster.”

From the HighWood Planned Development Guidelines (Oct 6, 1999):

WETLANDS (definition page 11 of our governing documents):

Areas defined as wetlands under the jurisdiction of the US Army Corps of Engineers and subject to State and Federal regulation and protection. Wetland generally include, swamps, marshes, bogs, and similar areas characterized by alluvial soils, vegetation or groundwater saturation.

The tree cutter suggested to cut them, and I called ACE right away. It took them 40 minutes that way they didn't have to come back, about 50 minutes each way to pay.

As for the HOA, there was no time the BOD meets 4 times a year, and:

It was hurricane Mathew that took a major swipe through gated community. I never saw anything in writing. I got word from a neighbor that U. (Head of DRB) was giving permission to remove trees. This neighbor asked U. on my behalf (as I’ve never met or spoken with her) for permission to remove trees leaning toward the back of my house as a result of Mathew. She or no DRB member came to inspect the leaning tree. I was told that Mr. D’s was recommended by U. They were doing quite a bit of work in the neighborhood and while they were working in my neighbor’s yard I approached them, got a reasonable price and had them remove the leaning trees. They did a good job leaving the timber and stump as I was told by ACE.

Kyrie Eleison.