Neglecting maintenance obligations from a city ordinance

[nwuser]

Hello all,

My home is adjacent to a condo property. A road next to my home was converted to a fire lane for the condo property back in the 90s when the condo property came up. The city ordinance that was passed approving the construction of the condo property states,
"Prior to final development plan approval, the developer shall provide the city with a maintenace agreement for the long term maintenace of landscaping within the XYZ Street right-of-way shown north and south of the pavement. Regular maintenance of the landscaping to these areas shall be the responsibility of the Homeowners Association. Said maintenace agreement shall be reflected in the Covenants, Conditions and Restrictions recorded with the final development plan."

The condo HOA has been doing this all these decades. Recently the "Senior Planner" sent me a snail mail with his/her email correspondence with the HOA as an attachment. In the attachment the HOA claims that they have not been able to locate the maintenance agreement and hence are not responsible for the maintenance of the landscaping and in turn the responsibility should fall on the adjacent lots. The senior planner in turn replies that they arent party to CC&Rs to arbitrate on what is required. However that in the absence of a maintenance agreement, the obligation falls on adjacent lot (in this case myself).

Question: What is the best way to get the city to enforce their ordinance and get the HOA to reassume the responsibility that they were ordained to and had done all these decades?

Thanks a bunch!
FYI: My community doesnt have a HOA

 

[HRZ]

Some place in Planning/City records there would be a copy of the agreement ...may require a good bit of digging .

it's entirely possible that sloppy city planners / administrators back then allowed the project to move forward wo agreement in place ..but it sounds unusual given it took a ordinance to even get it to table .....try making intelligent questions/ comments at open sessions of City council, line up support of your local elected city rep.

Not finding a docuement is not a good excuse to shift the burden contrary to clear intent of ordinance...but the lazy route is to shift it to you . This may be 98% local politics . ...learn to play.

 

[LdiJ]

What kind of landscaping are we talking about? Is it just cutting grass or is more than that involved.

 

[nwuser]

There is mowing and few trees. That is it. No hedge trimming to look like a lady and such. They even have sprinklers installed and have paid the cost of the water all way along.

Meanwhile, I found under a recorded document recorded, say on 5/5/95, that establishes their HOA (CC&R?), a line item under Powers and Duties "Maintenance of the landscaping within the XYZ street right-of-way adjacent to the roadway pursuant to the recorded Maintenance agreement with the City of ABC"
If the ordinance was passed on, say 4/4/94, can I request the planning department to provide me all documents within these 2 dates for review? Is that how (or excavating) works? Never gone down this road before. Please advise.

 

[HRZ]

i sometimes have gotten better results by simply going to City Hall and asking polite questions of City Clerk first...or ..somebody knows where to look and sometimes a smile gets more help than the official requests for records...which somerimes can trigger a hefty research fee.....it could be recorded in some obscure place ...even with County recorder of deeds .
Smile and keep at it....you are zeroing in.

 

[TimStudiesLaw]

i sometimes have gotten better results by simply going to City Hall and asking polite questions of City Clerk first...or ..somebody knows where to look and sometimes a smile gets more help than the official requests for records...which somerimes can trigger a hefty research fee.....it could be recorded in some obscure place ...even with County recorder of deeds .
Smile and keep at it....you are zeroing in.

I'll second this. Here at the city government office where I work, people who are friendly and respectful get pretty much anything we're able to give them. People who come in acting like they have an agenda get a blank FOIA request, where they have to be very specific on what they are looking for.

 

[FarmerJ]

When the neighboring properties board told you >and in turn the responsibility should fall on the adjacent lots. The senior planner in turn replies that they arent party to CC&Rs to arbitrate on what is required. However that in the absence of a maintenance agreement, the obligation falls on adjacent lot (in this case myself). < I didn't see you saying you don't own that land , SO do you own all or any part of the land the private street was built on ?

 

[HRZ]

Per the clear intent of the ordinance the duty falls upon the HOA

 

[nwuser]

When the neighboring properties board told you >and in turn the responsibility should fall on the adjacent lots. The senior planner in turn replies that they arent party to CC&Rs to arbitrate on what is required. However that in the absence of a maintenance agreement, the obligation falls on adjacent lot (in this case myself). < I didn't see you saying you don't own that land , SO do you own all or any part of the land the private street was built on ?

I dont own that land Planning to give a call to city clerk tomorrow to ask when they will be available next week and take those days off from work and party in the City Hall! Will keep you guys posted.

 

[nwuser]

Sorry for the late reply folks. Still in a hangover from the level of apathy in the planning department, specifically the boss. He claims he has no tools to enforce the re-filing of the supposedly missing maintenance agreement. County didnt have info on it. City clerk searched around but didnt find anything either. Met with an attorney. I am planning on taking legal action against the city for approving the final development plan without getting maintenance agreement recorded. Also the declarant of the HOA's CC&Rs and by succcession, the HOA, for not recording the maintenance agreement and seek relief from having to maintain it. I have reached out to the declarant to see if they have the maintenance agreement and avoid all this.

 

[FarmerJ]

So the land the driveway is on is city owned ?

 

[nwuser]

It is not a driveway since it doesnt lead to a single home but I believe it is city owned. It was a public street before it got converted to fire lane.

 

[HRZ]

Deacquisition of a public street requires a good background in municipal law on such matters in your state and town and it may well still be a city public street ...even if it's called a fire lane ....locally my city did deacquisition a number of alleys and tiny streets primarily to avoid the maintenance of same ...then again one or more streets got turned over to ultra deep pocket developers and at least one land development code got rewritten as a favor so a deep pocket developer would not need a 50' ROW for a small street .

The intent of your ordinance is clear , darn clear ..but if it slipped thru the cracks cira 1990 in Planning ...the path of least resistance in City Hall may be for you to run with the ball and solve it . Sorry I cannot think of an easy resolution.

Long shot and not addressed in your post...IF the " fire lane " has deteriorated or been allowed to,over grow with big limbs etc such that local fire department will not or cannot use it....it might have super big issues for the condos ...go visit local fire chief IF that's a likely issue .