HOA lawsuits: who should pay for flood damage and stormwater infrastructure?

By Deborah Goonan, Independent American Communities

It may come as a surprise to some readers that many planned communities in the U.S. are governed by mandatory membership homeowners’ associations for one primary purpose — to pay for new construction and ongoing maintenance of stormwater management infrastructure.

Believe it or not, local governments commonly require establishment of mandatory membership HOAs, even for communities with public roads and no recreational amenities.

You see, shifting responsibility for subdivision stormwater management to private owners’ associations benefits city and county governments.  It relieves city and county councils of the need to budget for expensive construction, ongoing maintenance, and future repairs.

So local government leaders have been passing the buck on stormwater infrastructure to private homeowners associations for the past five or six decades.

 

Disadvantages of privatizing stormwater maintenance and flood control

But widespread privatization of stormwater maintenance and neighborhood flood control has major disadvantages.

Private real estate developers don’t always properly design or build effective stormwater control systems. Unfortunately, developers may be more focused on keeping their new homes high and dry, rather than ensuring their neighboring property owners won’t be flooded as a result of new development.

And the challenges continue long after a developer hands over control of the HOA to homeowners.

The fact is, most private property owners aren’t professional engineers or environmental specialists. They don’t know what they don’t know about maintaining  vital stormwater infrastructure.

Furthermore, most HOAs don’t plan for costly repair that will be necessary in the future.

State and local agencies are often tasked with periodically inspecting certain important infrastructure, such as dams and flood gates. But, for the most part, private owners, including HOAs, are left on their own to develop and follow a regular maintenance plan.

That’s why maintenance of stormwater ponds, culverts, and dams impounding private lakes is often inconsistent and inadequate.

There are serious, costly consequences of this piecemeal system of managing stormwater.

 

Texas: Houston area homeowners hit by two floods within less than six months

In the Houston area, dozens of residents in the Kingwood subdivision have sustained major flood damage twice in the past year.

Dozens of homeowners are now suing developers PSWA and Figure Four, (divisions of Perry Homes), for allegedly diverting stormwater from their uphill construction site to Elm Gove in Kingowood.

That lawsuit was filed in Harris County, by Omar Chawdhary from the Webster Law Firm and Kimberley Spurlock from Spurlock & Associates, P.C., shortly after the May 7 storm.

Homeowners say that Elm Grove never flooded — even during Hurricane Harvey in 2017 — until Perry Homes began clearing and filling land for Woodridge Village, just to the north of Elm Grove. The lawsuit claims that the developer and construction workers filled in natural streams, and installed new storm water culverts that diverted water away from Woodbridge, spilling rainwater directly onto roads in Elm Grove.

The extra water volume overwhelmed Elm Grove’s stormwater infrastructure, dumping two feet of water into dozens of homes.

Perry Homes denies responsibility, calling the flooding in Elm Grove an ‘act of God.’ The developers have also requested a change in venue from Harris County to Montgomery County.

Devastated homeowners began the lengthy process of repairing their homes over the summer. Then, the unthinkable happened. In September, Tropical Storm Imelda dumped 17 inches of rain, leading to a second destructive flood in Elm Grove.

At a town hall meeting for Kingwood residents in October, homeowners were dismayed to learn from the City of Houston that Perry Homes had just recently completed its stormwater infrastructure, including a new retention pond.

But, according to City-approved development plans, Perry Homes was required to build all infrastructure before it started selling homes in Woodbridge Village.

While legal discovery continues in the homeowners’ case against Woodbridge Village developer, the City of Houston, local flood control districts, and other authorities continue to work on adding 10 new flood gates to Lake Houston dam, in response to major flooding during Hurricane Harvey.

That flood control project is expected to take 5 to 7 years to complete, leaving Kingwood residents vulnerable to future flooding in the meantime.

However, city leaders must also properly oversee the work of private developers and  re-evaluate the wisdom of leaving ongoing maintenance of infrastructure to HOAs.

Sources:

Residents call for immediate action on flooding at Kingwood town hall
By Savannah Mehrtens, Staff writer | The Kingswood Observer/Houston Chronicle
Published 1:22 pm CDT, Saturday, October 19, 2019

Houston files cease and desist, launches investigation into flooding at Kingwood neighborhood Elm Grove
By Savannah Mehrtens, Staff writer Houston Chronicle
Updated 4:27 pm CDT, Friday, October 4, 2019

Kingwood residents file suit after hundreds of homes damaged during May floods
By Kaila Contreras Houston Chronicle
Updated 8:25 pm CDT, Wednesday, July 24, 2019

Residents in Kingwood subdivision Elm Grove mull options after two floods in 5 months
By Chris Shelton Houston Chronicle
Updated 8:22 pm CDT, Friday, September 20, 2019

 

Private lakes, failing dams

Another growing source of downstream flooding and litigation: failure of dams impounding private lakes.

Many private lake communities are 50 – 100 years old. In some communities, dams and flood control gates have not been properly monitored or maintained.

In some cases, this has led to sudden catastrophic failure of the dam, causing injury, loss of life and extensive property damage in the path of rushing water.


Related:

Arkansas – defunct HOA will lose lake if dam not fixed

After flood, HOAs cannot afford to rebuild lakes

SC: City of Columbia, Lake Katherine HOA to share burden of flood control

NC floods: private dams known to be deficient for decades


Ohio AG sues HOA that failed to fix dam in private lake community

In Ohio, state inspectors have notified owners of dams in 11 private communities that they must make repairs to safely impound the water in their lakes.

According to the Dayton Daily News, the following lakes and communities are impacted:

  • Remick Lake in the Settlers Walk development in Springboro
  • Spring Lake in Huber Heights
  • Clark Lake in Clark County
  • Cedarville Upground Reservoir in Greene County
  • Grand Lake St. Mary’s West in Mercer County.
  • Echo Lake, Franz Pond
  • Swift Run Lake dams in Miami County
  • both dams at Paradise Lakes in Preble County and
  • Lilley Lake Dam in Warren County.

Most of the private homeowners’ lake associations have agreed to make the required repairs. Much of the work is currently underway.

However, Ohio Attorney General was forced to file a lawsuit against the Settler’s Walk HOA in Springboro, after the HOA failed to address safety deficiencies with its dam on Remick Lake.

Settlers Walk homeowners dispute who is responsible to pay for repairs to the dam — their HOA or MCS Land Development. A Magistrate has been assigned to the case, with the next court date scheduled for January 15.

Sources:

Poor condition of 11 local dams puts areas at risk
Nov. 18, 2019
ByLawrence Budd, Staff Writer | Dayton Daily News

Magistrate assigned to Springboro dam safety lawsuit
Nov 27, 2019
ByLawrence Budd, Staff Writer Dayton Daily News ♦♦