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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Monday, September 18, 2017

Homeowner Association Responsibility for Storm Water Maintenance in 2017

I blogged about homeowner association responsibility for maintenance of storm water drainage systems in subdivisions in Forsyth County years ago in 2009. Basically, the ultimate conclusion I expressed in my article was that under the 2004 Forsyth County Addendum to the Georgia Storm Water Management Manual, homeowner associations have a responsibility to maintain their detention ponds and storm water easements. To state that a little more plainly, I argued in 2009 that the Forsyth County Code required homeowner associations and property owner associations to fix their detention ponds and rotting pipes.

The issues in that obscure, 2009 blog post could only be of interest to people that own deteriorating storm water pipes, or detention ponds. But, I assume you are interested, otherwise you probably would not have read past the title to this blog. So, I am re-harvesting my 2009 statements. However, I definitely will not repeat the reasoning of the old, 2009 article because I have to assume that if you are interested enough, you either have read the old blog entry, or that you just want to cut to chase and find out what the law is now. If neither is the case, then please just stop reading and spend your Internet time on sites more worthy because we are about to delve deeply into the weeds of storm water law.

O.k., you are still here, so here it is, the current state of the law in 2017: 

In 2017, after much litigation and the expenditure of hundreds of thousands of dollars in attorneys' fees and time, I still believe the Forsyth County Code still requires homeowner associations and property owner associations to maintain their storm water drainage systems in subdivisions with associations.

In one legal opinion regarding the law and facts in Polo Golf & Country Club Homeowners' Ass'n v. Rymer, 294 Ga. 489 (2014) (also referred to as the "2014 Polo Case"), the Georgia Supreme Court did make a ruling that affected the statements in my 2009 blog entry. 

The Georgia Supreme Court held that the homeowners who brought the 2014 Polo Case were entitled to make a claim against their homeowners association to require it to fix the storm water system there. The Court first affirmed the trial court's refusal to dismiss the homeowners' claims against the association, and it indicated their claims for damages from flooding should be heard by a jury. The exact language of the Georgia Supreme Court's opinion was as follows:
Pointing out that the covenants require homeowners in the subdivision to maintain and repair the structures, including stormwater facilities, on their own property, Polo contends the trial court erred in denying its motion for summary judgment vis-รก-vis the Rymers. We cannot accept this assertion because, simply put, a genuine issue of material fact remains as to whether Polo is estopped from enforcing the maintenance provision of the covenants . . ..
Polo Golf & Country Club Homeowners' Ass'n v. Rymer, 294 Ga. 489, 491 (2014) (emphasis supplied).

Accordingly, that matter returned to the trial court for further proceedings. However, before the jury trial happened, the association's insurance company settled the case by paying the plaintiffs. The plaintiffs then dismissed their case, voluntarily. Also, at least part of the deteriorating, collapsing, storm water pipes were repaired although not due to direct repairs by the association.  

The Georgia Supreme Court also made other statements that apparently confused some people into claiming that the plaintiffs in the 2014 Polo Case had "lost". This is hard to understand given the literal language of the opinion, and the settlement, but, admittedly, legal opinions can be confusing. 

Anyway, to understand what the Supreme Court held in the opinion in the 2014 Polo Case, one needs to first understand what the homeowners association argued in that case. The full context of the opinion was omitted. Opinions by appellate courts often condense literally thousands of pages of evidence and contentions into a short readable statement. Of course, this just makes sense since the reason appellate courts issue written opinions is to provide some measure of guidance to the current and future parties, and members of the public. 

After clearly ruling for the homeowner plaintiffs, the Georgia Supreme Court in the 2014 Polo Case had this to say on the issue of whether the Forsyth County Code, in effect at the time the plaintiffs had filed that case, required the association to fix the association's storm water infrastructure: 

As can be seen, the [County] addendum [to the Georgia Storm Water Management Manual] is replete with statements demonstrating it is to be applied to projects which come into being after its adoption. Section 1 of the addendum, the “applicability” section, states that the addendum is applicable to “new developments”  and “redevelopments.” This point is emphasized in section 1.1 where the addendum specifies that the addendum is to be applied to new developments and redevelopments with 5,000 square feet or more of impervious cover. Again, in section 4, the addendum speaks of its applicability to “new developments” and “redevelopment.” And in section 4.2.2, we also find language looking to the future — i.e., “the association will have to be formed prior to final plat approval” — that is consistent with a prospective application of the addendum. The only phrase in the entire addendum which arguably implies a retroactive application to existing developments is also found in section 4.2.2: “Stormwater Division personnel may perform periodic inspections of existing and new private stormwater management facilities to determine whether they are maintained properly.” However, upon close inspection, it is clear that, in context, the word “existing” describes “stormwater management facilities,” not subdivisions. In other words, section 4.2.2 can be applied to “new private stormwater management facilities” or “existing” stormwater management facilities in a “redevelopment.” But it is not to be applied to a pre-existing subdivision. 
Polo was developed nearly twenty years before the addendum was adopted. It is not a “new development” or “redevelopment.” Accordingly, it is not subject to section 4.2.2 of the addendum.
Polo Golf & Country Club Homeowners' Ass'n v. Rymer, 294 Ga. 489, 494-95 (2014).

Now, if you just read that last quoted part of the opinion and actually understood it (without reading the first part where the Supreme Court said the plaintiffs won) you might get confused, and think the plaintiffs had lost. But such a conclusion would ignore the ultimate outcome of the opinion, as expressed by the Court on page 491. 

There is at least one more point to be made about the 2014 Polo Case though. Even the statements on pages 494 and 495 -- where the Supreme Court said that the Forsyth County Code did not require associations to maintain detention ponds and pipes -- are now irrelevant to any subdivision in Forsyth County. The opinion did not talk about what happened behind the scenes because that is not how legal appellate opinions work.

While the association was strenuously arguing through its attorneys, at considerable expense to the association, that the 1996-2004 Forsyth County Ordinances did not apply to older subdivisions and associations, the Forsyth County Board of Commissioners amended the Code to make sure that it did. While the 2014 Polo Case was still pending on appeal and awaiting a decision from the state's highest Court, the Forsyth County Board of Commissioners went ahead and changed the Storm Water Code to avoid an unhappy ending. All the County had to do was enact a new version of the ordinance -- making it clear that it intended to require older developments with homeowner associations to maintain their storm water systems. Forsyth County voided the result of the second half of the 2014 Polo Case even before the opinion came out. The Code now expressly states homeowner associations must maintain detention ponds and storm water pipes in older subdivisions with associations. 

The association also made a lot of other contentions in the facts underlying the 2014 Polo Case that the Georgia Supreme Court declined to address. The Court did not have anything to say about the association's contentions that the Forsyth County Code amounted to an unconstitutional imposition of slavery on the association, or an illegal retroactive law, or an impairment of contractual obligations. The Court said it would not reach those scintillating issues because, among other things, it had already ruled on the plaintiff's claims.

Last, these other arguments may be decided one day. It does require a lot of resources to litigate such issues. While it is may be less expensive on a case by case basis for parties affected by these issues to spend their funds fixing the problem instead of paying attorneys to fight, sometimes the individuals affected cannot afford the repair costs. Such costs are often huge when lakes are dredging are implicated. Seven figure maintenance and remediation costs are not unusual, and you could hear more on these issues if you have any interest in following them.

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