Developer took back open area (cross post)

[fwyview]

What is the name of your state? Texas
Moved into my home in the fall of 2000. It is in a subdivision. Was pretty sure that a 4-5 acre area on the frontage road was supposed to be a restricted reserve. Didn't worry about it. A few years passed and a real estate sign goes up saying that a Med/ Professional space was going in. Walmart had gone in on a very nearby corner around this time.
Any how figured I was mistaken about the reserve but was worried about the trees on that piece of land because they stopped me from having a view of thefreeway and cut back on some of the noise. So I decided that I should find out who to contact about trying to preserve some of these trees. After doing a little research I found a map from when we were building the house which shows this area to be reserve restricted to landscaping and openspace. Also found out that in Dec. 2001 the developer filed something with the county clerks office saying that that parcel of land was included in the final plat by error and that he was taking it back by procedures outlined in the deed restrictions that allow the HOA to change the use of a common area of the subdivision to another use if that use has a common beneficial use. The only benefit I see here is to the developer.
I discovered this 2 days ago and am worried that since this happened 5 years ago the statute of limitatiions might have run out. No one that I have talked to in the subdivision knew anything about this. Please give me some guidance. Thank You
Added - I forgot to state that the reason I know about his filing the document is because I have a copy of what was filed with the county clerk's office.

[Dave Stevens]

Exactly which incident occurred 5 years ago? The filing of the document? Or the sign going up for the Medical office? Have they started developing yet at all?

Assuming that it was the filing of the document 5 yrs ago and that the sign just went up a little while ago, I dont see why statute of limitations has anything to do with it. If the developer told you that that space was going to remain undeveloped as an incentive for you to buy, and you bought that house with this as a reason, I would think you still have a reason to go after them. Most of the discussions in this forum dont deal with this kind of stuff so your advice might be hit/miss. It is certainly going to be so from me. Nonetheless, here is what I suggest:

- get to the county zoning/planning department and find out exactly what is going on.

- Look at any documents, especially marketing materials and development site plans that might show that area as "reserved".

- Contact the developer and request info about what their plans are.

- If you really are going to try to stop any development you are going to have to hire a lawyer. You might want to see if any other neighbors are willing to get involved - this might help defray some of the cost. If you lived in California like I do you would probably have your pick of hippy-environmentalist-do-gooder-anti-everything-activist lawyers to choose from on a pro-bono basis. In Texas, you better get the wallet out.

[fwyview]

Hi, Thanks for the response. 5 years ago he took back the land from the subdivision saying it had been mistakenly included. I have lived in the subdivision for 6+ years. The sign for the building has been up for 2 + years. There had been another area at the front of the subdivision that had been misrepresented as reserve and has now been commercially built up, but that area never had been designated as reserve on any marketing materials or plat maps (that I have seen.), just on the maps in the builders offices which are now long gone. So I thought that I had just been misled in the same way about this piece of land, but now having found some of that orginial material I can seen that it was part of my subdivision when I bought my home.

- get to the county zoning/planning department and find out exactly what is going on.

This is Harris county Texas I don't think we have zoning, but we do have flood control regulations so I will see what I can find out about those

- Look at any documents, especially marketing materials and development site plans that might show that area as "reserved".

I have copies of these and of what he filed in Dec 2001 to take it back. All the earlier materials I have show it as a restricted reserve for landscaping and open space.

- Contact the developer and request info about what their plans are.

I'm afraid to because I think he is very likely to come take down the trees before anyone can stop him. He doesn't seem to be very ethical.

I am trying to get the HOA involved. We have a new board and management co. so I am hoping that they aren't under his control. Our rep. at the mngt co said she would look into it. And I brought this up at the HOA board meeting last week (no one had any knowledge that this had occured.) But should I even trust them ? I am trying to get copies of the HOA minutes from back then to see what was going on. I should also add that he (the developer) pulled out of the HOA a couple years ago because the % of sold houses in the subdivison was were they needed to be for the HOA to become independent.

Thanks for your help.

[Dave Stevens]

You have a good point about not alerting the developer. Im not really sure what to tell you about the HOA as they have their own laws and rules and Im not familiar with them. Its possible that the HOA board is still in bed with the developer, but after 2 years of being out of the picture, it would seem unlikely unless he had something to benefit from it.

If you still are unsure, the legal method for preventing the developer from cutting down the trees is an "injunction." Basically you show up to court with a lawyer, and he would too, and you present your evidence that the actions you are trying to stop (cutting trees down) could cause irreparable harm - at least I think that is the hurdle you have to get over. The judge decides that if your evidence shows you would suffer irreparable harm AND that you appear to have a strong case for stopping development, then he would grant the injunction. This is temporary until the real lawsuit starts. If the defendant or the plaintiff back out, which is not uncommon after an injunction ruling since the losing party assumes they will lose the suit, then the case is basically over. Since the developer obviously has alot to lose, he probably wouldnt back out and you would have to decide whether you would want to continue with the legal battle (and fees). Your fees probably would not be subject to repayment if you win. Obviously your decision is weighing the expected outcome and value if you win vs. the loss if you lose the case.

My hunch is that you will probably win the injunction because cutting down trees is pretty permanent and leaving them up doesn't harm the developer (until they start development), but that you would lose the court case. I am only saying this based on my assumption that the developer has good reason to think that he could have that "preserve" removed from that status - the county agreed with him, so it seems more likely to be correct than incorrect.

Good luck