Agenda - Planning Commission - 04/06/2017

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Community Associations, Hazard Mitigation, and Development Regulation By Tyler P. Berding and Joseph DeAngelis Common -interest community associations, including home owner associations (HOAs), condominium associations, and housing cooperatives, play a critical role in the maintenance of local infrastructure. Over the past few decades, a growing number of cities and counties have delegated the responsibility for long-term maintenance of common infrastructure associated with new residential development to community as- sociations. This often includes maintenance of common open space and may include maintenance of private streets and sidewalks, stormwater facilities, or other infrastructure that plays a role in hazard mitigation. For healthy and stable associations, requiring home owners to maintain their own common open space can reduce the fiscal burden on the local government. But do com- munity associations have the expertise to manage complex critical infrastructure such as levees, retention basins, and stormwater infrastructure? What about cases where com- munity associations fail? Are cities and coun- ties ready, willing, or able to assume control over long -neglected infrastructure? This article will: (1) lay out the increasing role that community associations play in the maintenance of critical disaster mitigation infrastructure; (2) provide an overview of the risks of delegating maintenance responsibili- ties to community associations; (3) discuss the role of performance guarantees in the de- velopment process and their impact on long- term infrastructure maintenance; (4) make recommendations for local development regu- lations to ensure that community associations Owners in gated subdivisions typically assume full responsibility for maintaining private streets, common open areas, and any stormwater or flood control infrastructure. are capable of tong -term disaster mitigation infrastructure maintenance; and (5) present three examples that potentially illustrate "bet- ter" practices in dealing with community as- sociation responsibilities for critical disaster mitigation infrastructure maintenance. THE INCREASING ROLE OF COMMUNITY ASSOCIATIONS IN HAZARD MITIGATION What is different today from subdivisions built four or more decades ago is that most will be built and incorporated as community associa- tions. In many cases, the engineered facilities to protect these developments from storms, rising tides, and sea levels will not be main- tained by cities or states, but will be the re- sponsibility of the home owners who live there. Since the early 196os, community as- sociations have served as surrogates for cities and counties to manage new infrastructure. To conserve tax dollars that would otherwise be necessary to maintain streets, parks, and pub- lic utilities in new developments, many local governments shifted fiscal responsibility for that infrastructure to the small group of owners living within that new subdivision. The com- munity association provided a useful way for developers to entice municipalities to approve their projects —generating new tax dollars with- out the consequent public works expense. Statutes in most states and hundreds of municipal ordinances provide the authority for this shift. They cover the gamut from what is required in the governing documents to how a community association is to maintain the resulting infrastructure. They generally assume that the financial wherewithal and necessary expertise will follow. These as- sumptions might be untrue, but that misunderstanding is usually not corrected by the enabling ordinances. Statutes and ordi- ZONINGPRACTICE 3.17 AMERICAN PLANNING ASSOCIATION I page 2