Get 1 year of free community web site hosting from Community123.com!
Monday, December 06, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Wetlands within HOA Property
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
JohnH38
(South Carolina)

Posts:84


07/31/2021 7:02 PM  
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).
MelissaP1
(Alabama)

Posts:10590


07/31/2021 7:13 PM  
It is actually "USACE" not ACE. Plus you may be treading on some fine potential ground for the HOA. I believe that disturbing of wetlands can lead to some significant fines issued. Those fines may or may not go toward you but the entire HOA. So you may want to factor that into any of yours or the HOA's decisions on this. Getting the courts attention on this may not be a good thing...

It's like walking up to a cop and saying that guy just sold me some bad crack arrest him...

Former HOA President
BenA2
(Texas)

Posts:1108


08/01/2021 6:52 AM  
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.
AugustinD


Posts:1920


08/01/2021 7:13 AM  
Posted By JohnH38 on 07/31/2021 7:02 PM
Their retainer must be ca. $2,000 and ergo the property manager may prefer to settle for $500 indeed.
Or either a statute or your HOA's Declaration may say that the prevailing party may/shall be awarded its attorney fees. If you go up against an HOA attorney and lose, you could end up paying a lot more than $500.

Do check what your covenants say on this point.
JohnH38
(South Carolina)

Posts:84


08/01/2021 7:27 AM  
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.
MelissaP1
(Alabama)

Posts:10590


08/01/2021 3:01 PM  
A court can ONLY make one "whole". Plus they may determine who pays the legal fees. The court may award you the $500 back but not the legal fees. Those may be on you. Plus your also costing the HOA legal costs. Those may be awarded to be paid by you as well if the court feels the case has no relevance.

Again it is USACE - United States Army of Corps of Engineers. They are part of the Army of the United States. So just being a little picky here on the right way to address them.

Wetlands can carry a serious fine situation. It could be addressed to you or the HOA if it is discovered. So I would try to keep the dust up to a minimum before it catches everyone into the mess...

Former HOA President
JohnH38
(South Carolina)

Posts:84


08/01/2021 6:03 PM  
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

@@@@

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,

@@@@
BenA2
(Texas)

Posts:1108


08/02/2021 5:55 AM  
I am not sure what you are looking for by going to court. Since your original objective was to pay someone to remove the timber, and that happened, how have you suffered any harm? I still think that if the board told you to do something illegal and you did it, you cannot claim that they are responsible for the costs. I would just consider myself lucky ACE did not fine you and call it a wash.

As for the Association being responsible for expenses for litigation, Georgia law will trump your bylaws. Many states have laws protecting board members from personal liability. I believe in most cases you would have to show more than acting improperly, such as negligence or gross negligence.

If you do prevail and the board members are held personally responsible, good luck finding anyone else to be on the board. Don't get me wrong, I have no problem with holding them accountable for their mistakes but the reality is that there will be a cost to the your association.
BenA2
(Texas)

Posts:1108


08/02/2021 5:58 AM  
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.
SheliaH
(Indiana)

Posts:4291


08/02/2021 6:06 AM  
Well, you weren't necessarily wrong about the court thing - whenever possible I prefer alternative dispute resolution because it's faster and often you can come to a compromise everyone can live with.

In this case, I think the OP may be able to squash this and get his money back by having his attorney write a letter with the citation regarding the timber removal. Perhaps even get a statement from the US Corp of Engineers, as he did go to them first to see if he were allowed to cut the tree down. Between that and the information from the Corp of Engineers, it would seem to me the board would see they're in the wrong and it would be a lot faster to apologize and cut the check. That's a lot cheaper than going to court where there's a good chance they'd lose and wind up paying their court costs, the OP's court costs (if suing the association, always ask for that should you win) - and the $500. Maybe this board is playing hardball because "we are the board and therefore we are" and need to be taken down a few pegs.
JohnH38
(South Carolina)

Posts:84


08/02/2021 6:33 AM  
Where it stands now, I wrote to the PMC to consult with the association attorney and I'm awaiting her opinion.

Kyrie Eleison

@@@@

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.

JaniceM7
(Maryland)

Posts:16


08/02/2021 7:46 AM  
my initial question is that this is wetland owned by the HOA but did the HOA approve cutting the trees down or just USACE? Why did you not ask HOA first since it's their land?
JohnH38
(South Carolina)

Posts:84


08/02/2021 9:09 AM  

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.
MikeB23
(Louisiana)

Posts:59


08/05/2021 1:59 PM  
I spent a year fighting with the Corps over 1/4 acre of wetlands that was standing in the way of building a $120 million plant that would employ over 200 people. Neither you or the HOA will win in a conflict with the Corps over wetlands. If the Corps gave you direction then the HOA has no basis IMO for attempting to override the Corp's direction.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Wetlands within HOA Property



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement