Agenda - Planning Commission - 04/06/2017

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nances promote the creation of a community association to own and maintain certain facili- ties, but are sorely lacking in requiring the oversight or enforcement to make sure that maintenance happens. Streets, levees, storm sewers, parks, parking lots, and sidewalks in old develop- ments are owned and maintained by cities and counties using tax dollars raised from a broad tax base. In many newer projects the community association is responsible for maintaining most "common areas" as well as critical facilities like levees, berms, pumps, riprap, and retaining walls. Developers and municipalities thereby avoid long-term re- sponsibility for such projects. The homes and units within the development are sold off in the near term. The developer takes the profits and is protected from long-term liability not only by the assessment or taxing arrangement that moves the cost of future repairs to own- ers, but also by various statutes of limitation that cut off legal liability within a few years of projected completion. After that, the property owners within the association are on their own. What will happen when sophisticated, critical improvements are maintained solely with owner assessments? Levees and seawalls in marine coastal areas, and critical mitigation facilities in flood -prone lowlands elsewhere, will depend upon the will- ingness of individual home owners to assess themselves to provide adequate funding and to provide the necessary management. It's one thing to let the landscaping go to seed or to allow chuckholes to exist in the parking lot, but a crumbling dam or bay levee is at another threat level altogether. Relatively few cities and counties include provisions in their subdivision codes that indi- cate how the locality will ensure that a required community association is actually created. In practice, the developer remains on the hook for infrastructure and common space completion and maintenance until he can provide evidence that he has transferred responsibility to a com- munity association. Some cities and counties do, however, require evidence of the formation of an association before issuing either a pre- liminary or final plat approval. In these cases, the developer must produce documentation (e.g., articles of in- corporation, bylaws, and recorded covenants) showing s how and when ownership ofcom- mon facilities will be conveyed to the new association. When localities explicitly address O A stormwater retention pond serving a residential subdivision in Prince George's County, Maryland. the timing of the transfer of responsibility from the developer to the association, the language is typically vague. For example, a number of cities and counties require association bylaws or covenants to contain a schedule for the transfer to owners and stipulate that develop- ers must disclose the timing of the transfer to prospective buyers. A few communities set out a specific threshold that triggers the transfer (e.g., a percentage or number of units sold). THE RISKS OF DELEGATING INFRASTRUCTURE MAINTENANCE TO COMMUNITY ASSOCIATIONS Planning decisions involving community as- sociations are usually based on three assump- tions: (1) The association will have an infinite life; (2) During that period the owners will assess themselves as necessary to properly maintain critical facilities; and (3) The own- ers and their managers have the expertise to maintain critical facilities or know how to get it. Each of these assumptions will usually prove false. Generally speaking, local governments require community associations in order to ensure that common (private) property and infrastructure is maintained in perpetuity. If the association fails to adhere to maintenance requirements, the local government has the authority to perform the maintenance itself and bill the owners (often by creating property liens). In reality, though, every community as- sociation has a limited "service" life because it is not self-sustaining overtime. Most com- munity associations will eventually become obsolete because funding for normal and extraordinary maintenance is not sufficient, leading to increasing deferred maintenance until the property becomes uninhabitable. This is more pronounced in attached housing, but will also occur in single-family home de- velopments eventually. Critical infrastructure within these subdivisions will suffer a similar fate. The timing of obsolescence is the only question. We're talking decades, but with many older projects, we're already there. Because owners determine the cash contributions to long-term maintenance re- serves, and because most plan for a near ho- rizon, owners will reject assessment increases to bring long-term reserves to an acceptable level or to specially assess themselves for emergency repairs brought on by normal de- terioration. If a natural disaster occurs, and insurance or government assistance is not available, the owners may not fund a rebuild. Owners and most community managers have no experience with sophisticated infra- structure like floodgates, damns, levees, and weirs. They might not understand what those ZONINGPRACTICE 3.17 AMERICAN PLANNING ASSOCIATION I page 3