Meandering Stream > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: Meandering Stream

Prev Next

You are not authorized to post a reply.

Page 2 of 2

Author

Messages

SusanW1
(Michigan)

Posts:2121

08/18/2008 7:34 PM
This is a familiar scenario in our county: farm land containing a county watershed stream, with drainage toward a natural wetland area is sold to a developer. The developer asks the zoning board for single family home zoning on all the land, including the wetland area. But due to the wetlands laws, he can't fill and build to get the zoning (R-1A) he wants. So the township "mitigates" the land - letting him put a denser community on the land since he can't develop in the wetlands, and so the stream and the wetlands is preserved and can do its purpose of carrying natural and stormwater run-off. The entire land is platted out around the stream and wetlands area. The developer is allowed to build more homes on the land, but on smaller lots. The subdivision is platted around the wetlands and the stream. These streams are not "owned" by the HOA, rather the stream runs on property lines. While the HOA "owns" the wetlands area, it is unbuildable and no one can alter or improve or even do anything, incuding mowing, within 25 feet of the border. Both the county and the DNR would be very interested in any action within attempted in that wetlands. It is part of the protected watershed of the area. If the river starts to "meander" the DNR and the county would help the homeowner to prevent loss of property, but the HOA would not be involved, at all.

BonnieE
(Illinois)

Posts:168

08/19/2008 1:31 PM
George, I did some checking and found/received the following info regarding legal ownership of the land under the stream (bed) -disclaimer for HOATalk.com applies :-) 1) ownership of stream or river bed: If stream is designated as navigable (see- Indiana Register, Volume 15, Number 10, July 1, 1992) “…title to the bed of the river passed to the state of Indiana . . .”. In Indiana, the test for navigability is generally whether the waterway “was available and susceptible for navigation according to the general rules of river transportation” which existed in 1816. Title to a navigable watercourse rests with the State of Indiana. State v. Kivett, 228 Ind. 629, 95 N.E.2d 148. The Natural Resources Commission has a nonrule policy document listing waterways designated as navigable or nonnavigable. The current version is “Roster of Indiana Waters Declared Navigable or Nonnavigable” on the LSA website at DIN: 20080611-IR-312080426NRA, with a searchable version on the NRC’s website at http://www.in.gov/nrc/2443.htm. This listing does not evaluate whether the principles, applied by the entity which made the declaration, are consistent with Kivett. If stream is “. . . not navigable [as defined by Federal Government or Indiana Natural Resources Commission], title to the bed of the river passes to the adjacent property owner or owners.” This statement is typically accurate but could be modified by the terms of a deed. For example, a deed could properly state that ownership extends to the far shore of the river. The adjacent property owner on the far side of the stream would then have no title. 2) Ownership changes with regard to stream erosion, accretion: For a navigable watercourse, erosion removes title from the adjacent property owner and passes title to the State. Accretion removes title from the State and passes title to the adjacent property owner. Avulsion does not change title ownership. The same principles generally apply to nonnavigable waters but may be modified by the terms of a deed. 3) When streams are used for control of stormwater, who owns the stream bed? Assuming that the question refers to legal drains, ownership would be as determined by navigable or not navigable status of the stream segment in question. Restrictions and control of stream would be subject to Indiana Flood Control Act. Being a “legal drain” doesn’t change title in Indiana nor does it change a stream’s status as navigable or nonnavigable. Being a legal drain does in some circumstances restrict the ability of DNR to regulate under the Flood Control Act (IC 14-28-1), but probably does not have any consequence for the Navigable Waters Act (IC 14-29-1). A contact for this issue is: Mr. Steve Lucas, Director, Natural Resources Commission, 317-233-3322 With regard to what the HOA should do – I agree with Kirk in that the HOA should take the responsibility of addressing the stream erosion issue (preventative action). Based on the above regarding stream bed ownership, a law suit would likely be time consuming and costly. From what I can see, at this time, the HOA owns the property on both sides of the stream at least up to the ordinary high water mark, if the stream is navigable, and also owns the stream bed if it is not navigable. Hope this helps, Bonnie

GeorgerwilliamsW
(Indiana)

Posts:705

08/19/2008 3:17 PM
Thanks Bonnie for your extra efforts. Something here must have struck an responsive chord. As you know the Natural Resources Commission is an autonomous board that basically oversees the Department of Natural Resources. Included in the Commission’s functions are the adoptions of permanent rules, service (either directly or through an Administrative Law Judge) as the “ultimate authority” for appeals from DNR orders, the development of “nonrule policy documents” (general policy statements), and the employment of DNR property managers. The stream in question is clearly under the sole jurisdiction of the DNR, and they have been nothing but cooperative and helpful. All they want to assure is that the stream remains free flowing. As part of that, they want to assure the integrity of the natural flood plain so that the stream can handle peak drainage periods as it is naturally does. We can't build on or modify the flood plain in a way that would impact its ability to handle peak periods of drainage. Any work, other than keeping the stream free flowing, requires DNR assent via a permit. Right now water in the stream is about 2 inches deep. During peak runoff periods, it will be, perhaps four or five feet in depth. When this was farm country, it was called a "legal drain" and was under the jurisdiction of the county drainage board. That was many years ago, when this was farmland. Now the stream is included as part of the county's integrated storm water management system under the administrative supervision of the DNR. (If it were a 42 inch storm drain pipe, it would be the responsibility of the Department of Public Works.) There is absolutely no question whatsoever that the land that constitutes the flood plain and the stream bed itself is owned fee simple by the homeowners association. There are absolutely no recorded easements on the land whatsoever. And there is no question by anyone, that the homeowners association is responsible to keep the stream free flowing. The question continues to be, "is the owner of the flood plain over which the stream runs financially responsible to keep the stream bed within the property lines, if it is naturally eroding outside the bounds of the property?" So far, none of us know. It is an question that is not reflected in statutes or case law so far as research has determined.

SusanW1
(Michigan)

Posts:2121

08/19/2008 4:07 PM
"There is absolutely no question whatsoever that the land that constitutes the flood plain and the stream bed itself is owned fee simple by the homeowners association. There are absolutely no recorded easements on the land whatsoever. And there is no question by anyone, that the homeowners association is responsible to keep the stream free flowing." And THIS is all stated soemwhere in your HOA CCRs/Articles or HOA deed (that you claim says the HOA owns the stream?) George, I think you are mistaken in who "owns" the stream. The surface water is under the jursidiction of the DNR; the "bottomland" is owned by the property owner whose surveyed property line abuts the river bank. Yet you say there is no HOA easement along the river before it gets to HOA owned wetlands. Can't have it both ways. I'd love to see a survey plat map of your subdivision. Too confusing for me - I'm outta here1

BonnieE
(Illinois)

Posts:168

08/19/2008 5:04 PM
You're welcome, George. Thanks for your post, Susan – you are basically correct as per my post. George, please give a call to Mr. Lucas. The info I provided came from another State employee who, I was given to understand, had contacted him. Bonnie

KirkW1
(Texas)

Posts:1110

08/19/2008 5:28 PM
I believe that what George is trying to say is that currently the HOA holds the deed to the land on both sides of the stream. As such, they also hold deed to the land under the stream. This really isn't a question of who owns the land the stream currently sits on. The question of the day is: Does the HOA hold either a legal or moral obligation to keep the stream from leaving the common property and going onto a home owner's property.

GeorgerwilliamsW
(Indiana)

Posts:705

08/20/2008 4:22 AM
Thanks, Kirk. I see you get it. With great fear and trepidation that it will only prolong the discussion here and further confuse some people, I have attached a map of the affected area. The yellow areas are owned outright fee simple by the homeowners association without any easements whatsoever (not utility, not access, not nuttin'.) The red lot is the affected property.
Attachment: 1820221089371.pdf

GeorgerwilliamsW
(Indiana)

Posts:705

08/20/2008 6:10 AM
Resolution! We had a meeting last night with members of the association board of directors, the affected homeowner, and, surprisingly, a representative from DNR. Yes, it was a closed meeting. I shared with the group some of the discussion from this thread, even though we got far afield of the original question and some posters had a difficult time understanding the issue. It proved to be helpful. Thank you for your multitudinous responses, wise counsel and advice. I think the outcome of the meeting was good. I think we agreed to do exactly the right thing, given the questionable issue of duty and financial responsibility. Here is the gist of the discussion. The homeowners association will allocate $10-25,000 from the reserve fund to rip rap the oxbow in question. That will provide a 20-30 year reprieve, but not a permanent solution. (The reserve funds in question are currently targeted toward detention pond bank maintenance. However, such maintenance is not yet required and is likely not needed for another 10-20 years at the earliest.) Since our existing reserve fund is close to being fully funded, we will use the ensuing period to build up reserve funding (without any need for fee increase!) so that funds will be available in the future to reroute the stream when the rip rap eventually fails. We will also update the reserve fund study in the next couple of years to include flood plain maintenance. The homeowner has agreed to pay for the removal (for purposes of access) and reconstruction (if he desires) of his fence. He will also allow access to the flood plain through his lot to do the work. Such access could save as much as 10 percent of the cost for the rip rap. This arrangement will avoid the need to seek a vote of membership for a special assessment--a vote that would likely not be favorable since it impacts only one homeowner. It will also preclude any need to go to court to determine financial responsibility in a murky area of law. DNR has no problem with the proposal, having previously inspected the site. A permit for the work will be issued within 10 days of application. I think this shows that even though it may not be the responsibility of the homeowners association to deal with this issue, the right, fair, just, sensible, and neighborly thing has be done. It is a welcome example of a homeowners association working with an individual homeowner the right way.

BonnieE
(Illinois)

Posts:168

08/20/2008 6:38 AM
Hurrah, George! That is indeed good news – and a tribute to how the Board can work with the HOs in the best interest of the HOA. Good job! Bonnie

DwightT
(Idaho)

Posts:443

08/20/2008 7:52 AM
George - not to rain too much on your parade (good job on getting everybody to communicate), but the issues are probably not over yet. First, from the map you posted, it looks like you may have a future similar problem with the cul-de-sac property that is NW of the current affected lot. Soil composition may be different which can have an impact on the rate of erosion, but I wouldn't be surprised if the HOA gets asked to treat that one as well in a couple of years. Better get that reserve study done quick. Second, as any good engineer knows, you can't do one thing. Stopping (or even just slowing) the erosion in one area is going to have an impact on other areas downstream. This one property may be temporarily protected, but I would guess that the chances are good that the problem may just end up shifting down stream. I forgot about this during the discussion here, but you might want to see what you can find out about the Boise River through Eagle, ID. A couple of years ago a local HOA threatened to sue the city if they didn't get the Army Corps of Engineers to change the flow of the river so that their homes (built in the flood plane) wouldn't get flooded. I don't know what ever came of the lawsuit, but I remember some down-stream communities voiced some concerns about the impact on them if the river was rerouted. Might be something to look into for general info.

GeorgerwilliamsW
(Indiana)

Posts:705

08/20/2008 8:06 AM
Excellent thoughts, Dwight. I know what you mean. As part of this process, we did a thorough evaluation of the entire flood plain with the DNR at our side. The stream channel on the northwest of the map is (1) significantly deeper and (2) has not moved in the past 15 years. "Second, as any good engineer knows, you can't do one thing. Stopping (or even just slowing) the erosion in one area is going to have an impact on other areas downstream. This one property may be temporarily protected, but I would guess that the chances are good that the problem may just end up shifting down stream." How true! The stream bed continues to change its meander along its entire course through the flood plain. That issue was discussed, and it was decided to take a wait and see approach. We simply don't have the funds now to channelize the stream bed. I fully expect to see some changes downstream, and we may have to deal with them eventually. At least, this is not a "next year" problem. By building up the reserve fund, we expect to have the money in hand for future work.

SusanW1
(Michigan)

Posts:2121

08/20/2008 7:03 PM
George - it's a good thing that I'm not a resident of your HOA! I'd fight tooth and nail with the decision to use HOA funds to pay for earth changes made by a natural stream that were NOT the result of any man-made action. OF COURSE the DNR will let you pay! They will gladly step aside and watch and "help" with consultants. Saves them paying for it. The truth is that I bet your original builder had to jump thru hoops in order to build around a stormwater stream in a floodplain. I can imagine the soil, stormwater and land erosion studies that were required.

KirkW1
(Texas)

Posts:1110

08/21/2008 2:18 PM
I would add that one day the street corner due south of the affected owner may come under attack from erosion as well. I am glad that you could come to an equitable solution that works for all involved. I think the owner was doing the right thing in allowing access and paying for the fence work to be done. The thing is that he can ensure the fence is removed in the best possible manner to reduce the amount of labor to put it back. While the cul de sac may not appear to be under threat, it could one day as you know. I also wondered about the street corner directly south of the affected owner. The thing is that the stream could potentially affect everything that abuts the floodplain.

You are not authorized to post a reply.

Page 2 of 2

Forums > Homeowner Association > HOA Discussions > Meandering Stream