HOA Wetlands and Common Areas

JohnH38 (South Carolina)
Posts: 100

Posted:

Howdy y'all,

Our association "Property" encompasses common areas and wetlands. The wetlands are under the jurisdiction of the county, and governance/rules by the US Army Corps of Engineers (ACE). Many lots are adjacent to wetlands and for years owners have prevented vegetation (scrubs, weeds, overgrown bushes &c.) to invade their property. The BOD recently bestowed upon themselves governance over these wetlands (not stated in our CC&R's) and fined some $500 for removing brush and scrub alongside their lots, a practice condoned by ACE.

What recourse do the hapless owners have when the BOD refuses to maintain/trim the wetlands by their lots? In our CC&R's wetlands and common areas are clearly parted.

Be it as it may, albeit I'm looking forward to some clarity.

JohnH38, SC

SheliaH (Indiana)
Posts: 6,964

Posted:

Have you asked the board if they received anything in writing from the army about this? If not or they won't say, contact the army yourself and see what you can find out. You may also need to double check the property lines- maybe some people have crossed the line and that's why they were fined.

You say tge owners were able to remove the weeds and whatnot "for years, " but it's possible they've been wrong all this time or the army may have changed its mind on the area because the wetlands provide habitats for many animals and flood protection.

I assume you're one of those hspless owners who've been presented with a fine notice.. usually there's an appeal process, so request one and start your research. Have other homeowners do the same. This may result in the board clarifying its policy. Or you'll have to accept that nothing lasts forever...

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Corp of Engineers (USACE) is NOT the Army. They are a separate entity with close ties with the Army. I am kind of having a hard time grasping that USACE is "okay" with this practice. It doesn't exactly ring. Usually they don't want you to touch anything without their approval or consent. So it may be "allowed" by them but also requires their recognized acknowledgment. The fine the HOA is pushing sounds more like what has to be paid in fines to USACE for disturbing the wetlands.

USACE is going to come after the HOA not the individual violating the rules of the wetlands if the HOA owns it. You being a member of the HOA this effects you and your neighbors. If the HOA gets fined because they are the owner, they are going to fine the individual who caused the fine. That way they get paid back for the money they lost.

Could this be more of the situation?

Former HOA President

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By SheliaH on 04/25/2023 6:47 PM
.... snip ....

You say tge owners were able to remove the weeds and whatnot "for years, " but it's possible they've been wrong all this time or the army may have changed its mind on the area because the wetlands provide habitats for many animals and flood protection.

... snip ....

This may be what happened, especially if some were "trimming" via chemical methods.

I'm not clear from the original post whether homeowners were trimming *alongside" their properties (ie. inside of the wetlands) or if they were trimming inside their property lines but adjacent to the wetlands. It makes a difference. It's possible that the HOA was told that they'd be fined for such encroachment, and it would be reasonable to pass the fines on to the homeowners who are responsible.

Anecdote: we have a detention pond in our common area that was intended to dry up between rain events, with the grass around the drainage being mowed regularly. This was the developer's final task, and when he was done the area was real estate listing attractive. Unfortunately the area had different ideas: it wanted to be a small wetland. After spending a bunch of bucks on a couple re-gradings, dredgings, replacement of pipes, and whatnot, we threw in the towel and let Mother Nature have her way. Currently the area is not particularly attractive but it drains well, and county officials have said that this is actually better for water quality. (We wanted their blessing because we could be fined for not maintaining the area.)

LoriM15 (Florida)
Posts: 1,009

Posted:

We have a lot of preserve and wetland areas that are platted as part of our community. We aren't governed by the ACE, but we are governed by our county and more importantly by a state Water Management District. The HOA is ultimately responsible for what happens in the preserves. We are required to have a company (actually we have two - one for the preserves and one for the wetlands) that makes sure we are following all the rules and regulations. For example, we can't trim and removed debris from the preserves. If we do trim, it has to be dropped in place. If it becomes a fire hazard, we have to get a permit to do some clearing, but it can't be manicured. It has to be natural. We have to have the wetlands cleared of exotic or invasive plants.

I'm sure it's a similar situation for the ACE. So if our governing organization does an inspection and finds that homeowners have gone in and cleared behind their homes, the HOA is responsible. This may be what is happening. The HOA might have been lax for a while but got a wake up call and decided they needed to enforce the rules. This may not have been their choice.

We have a situation now where we did some clearing (with a permit) of brush and invasives. The homeowners don't think we did enough because they don't like the "wild" look and complained we didn't clear out more. Unfortunately for them, we are following our regulations. The developer used to break the rules, but we won't take that responsibility.

You might want to go to a board meeting or ask a board member why they decided to enforce the rules all of a sudden. You might find that it wasn't their choice.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JohnH38 on 04/25/2023 5:02 PM
Howdy y'all,

Our association "Property" encompasses common areas and wetlands. The wetlands are under the jurisdiction of the county, and governance/rules by the US Army Corps of Engineers (ACE). Many lots are adjacent to wetlands and for years owners have prevented vegetation (scrubs, weeds, overgrown bushes &c.) to invade their property. The BOD recently bestowed upon themselves governance over these wetlands (not stated in our CC&R's) and fined some $500 for removing brush and scrub alongside their lots, a practice condoned by ACE.

What recourse do the hapless owners have when the BOD refuses to maintain/trim the wetlands by their lots? In our CC&R's wetlands and common areas are clearly parted.

First, you have to look at whatever agreement is in place for maintenance of the wetlands. For other HOAs, I have seen such agreements recorded with the HOA's governing documents at the county clerk's.

Second, did the HOA give you any warning that it would be fining? Fining is a big deal. In South Carolina, if you were not treated fairly, then you can submit a complaint to the Department of Consumer Affairs. You want this complaint to reflect what was not done consistent with the list given in South Carolina statute section 27-30-340. See https://www.scstatehouse.gov/code/t27c030.php . If the HOA gave you no warning, and you want an example of a letter you could write to the Board to ask that the fine be removed (or you are going to file a complaint with the Department, per statute ___), post back.

JamesB37 (California)
Posts: 351

Posted:

We probably have around 20 pages in our CC&R's from the US Army Corp of Engineers and the California Department of Fish and Game regarding a 'protected wetlands area' in our HOA.

The HOA maintains the area around the wetlands - but we have to hire a special company to come in to do any actual maintenance in the wetlands itself (removed dead trees, etc).

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By ElleN on 04/26/2023 7:18 AM

Posted By JohnH38 on 04/25/2023 5:02 PM
Howdy y'all,

Our association "Property" encompasses common areas and wetlands. The wetlands are under the jurisdiction of the county, and governance/rules by the US Army Corps of Engineers (ACE). Many lots are adjacent to wetlands and for years owners have prevented vegetation (scrubs, weeds, overgrown bushes &c.) to invade their property. The BOD recently bestowed upon themselves governance over these wetlands (not stated in our CC&R's) and fined some $500 for removing brush and scrub alongside their lots, a practice condoned by ACE.

What recourse do the hapless owners have when the BOD refuses to maintain/trim the wetlands by their lots? In our CC&R's wetlands and common areas are clearly parted.

First, you have to look at whatever agreement is in place for maintenance of the wetlands. For other HOAs, I have seen such agreements recorded with the HOA's governing documents at the county clerk's.

Second, did the HOA give you any warning that it would be fining? Fining is a big deal. In South Carolina, if you were not treated fairly, then you can submit a complaint to the Department of Consumer Affairs. You want this complaint to reflect what was not done consistent with the list given in South Carolina statute section 27-30-340. See https://www.scstatehouse.gov/code/t27c030.php . If the HOA gave you no warning, and you want an example of a letter you could write to the Board to ask that the fine be removed (or you are going to file a complaint with the Department, per statute ___), post back.

Yes, but with one nitpick. This may not be a "fine" as defined in the CC&Rs, but may actually be passing on costs for "damage" to the homeowners who are responsible (again the CC&Rs should state that this can happen). It may make a difference, and even boards get the language wrong.

That said, a warning notice is a good idea even if not required, especially if the board is changing course from what happened previously.