Tag Archives: homeowner association

Private Costs of Disaster Prevention

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Champlain Towers collapse. photo from Wikipedia

The recent collapse of the Champlain Towers in Surfside, Florida, has cast a spotlight on numerous issues concerning building maintenance, private and public decision-making processes, potential (but highly uncertain) corrosive impacts of sea level rise, and even the continuing exposure of rescue workers to COVID-19, in addition to environmental and occupational hazards. That is all in addition to the governance questions surrounding condominium boards, given the news of past debates about deferred but expensive maintenance once consultants revealed structural deterioration in the 12-story complex.

I wish to be clear about my purpose in writing this post. As an urban planner and researcher, I have doggedly sought to focus on known facts and accurate assessments of hazardous situations of any type. Sometimes, the truth is clear enough. In others, it is wise to withhold judgment while raising questions that deserve thoughtful answers. In this instance, there are so many aspects to the story of the condo building collapse that caution is the appropriate approach because new facts seem to emerge daily. One question—why the North Tower did not collapse while the South Tower did—may compel further inquiry on the role of condo boards in driving decisions about investing in maintenance before catastrophe strikes, but further investigation may reveal many nuances to that story as well. Complete answers are not always simple or obvious.

I have no intention of rushing to judgment on the tragedy in Surfside. But I do wish to focus on one issue that I know is endemic to housing development on a nationwide basis: the roles and responsibilities of homeowners associations (HOA) for managing and maintaining property. Condo boards are one specific subset of HOAs, based on the nature of the buildings. But the issues are not limited to such buildings; they can easily affect the management of townhouse developments and gated subdivisions as well.

Five years ago, when the American Planning Association (APA) and the Association of State Floodplain Managers (ASFPM) collaborated to produce a Planning Advisory Service Report, Subdivision Design and Flood Hazard Areas, we confronted one ticklish issue that concerned us greatly, albeit with regard to flood (and some other natural) hazards rather than structural integrity of tall buildings. The underlying issue, however, dealt with the capacity of privately governed homeowner associations to manage, finance, and maintain hazard mitigation infrastructure over time. Of course, one can easily broaden the definition of such infrastructure to include structural integrity repairs in a situation where buildings can potentially collapse, just as it might include the need to maintain the structural integrity of bridges to prevent such tragedies as the collapse of the I-35 bridge over the Mississippi River in the Twin Cities in 2007. There is considerable room for flexibility in defining the issue so long as the focus remains on public safety.

Our concern at the time was the potential for a financially challenged homeowners association or special district to fail to maintain critical infrastructure before a natural disaster leads to catastrophic failure, whether because of flood, landslide, earthquake, or wildfire, among other possibilities. Chad Berginnis, the executive director of ASFPM, alerted us to an article published by two lawyers involved in owner association litigation in California, Tyler Berding and Stephen Weil. They offered several examples of such situations including Bethel Island, which sits in the Sacramento Delta and includes about 2,500 residents whose homes are protected by more than 11 miles of levees that

USGS photo of Sacramento-San Joaquin Delta in California

circle the island, just 12 miles from the Greenville Fault. Throughout the Sacramento-San Joaquin Delta, the potential cascading impact of an earthquake triggering massive flooding with failed levees is a nightmare of major proportions. However, residents had defeated a proposed parcel tax to finance improvements through the Bethel Island Municipal Improvement District (BIMID), leaving the district broke and laying off staff. Berding and Weill offered a series of suggestions for better planning and management of these situations.

Whether the case involves a special district like BIMID or special assessments imposed by an owner association board, the issue is the local or private responsibility for financing and maintaining the protective infrastructure to avert such tragedies. Disasters are almost never solely a function of natural forces affecting human communities. They are also a function of the location, condition, and resilience of those communities, and the greater the exposure, the greater is likely to be the long-term cost of restoring that resilience over time to prevent catastrophic loss. In many cases involving floods, landslides, or earthquakes, insurance may be unavailable or financially problematic. The ultimate result can be a bankrupt association and property owners who cannot recover their losses, let alone rebuild, yielding a combination not only of loss of life and property, but of financial calamity as well.

Pad-mounted Transformer in a floodplain not elevated. Photo by Chad Berginnis from PAS Report, used with his permission.

In the report, we sought in several ways to address the issues posed by these dilemmas. We noted, for instance, that as of 2016, the Community Associations Institute reported that 66.7 million people, about 20 percent of the U.S. population, lived in some 333,600 common-interest communities, 55 percent of which were homeowners associations, the rest either condominium or other community associations. One result is the transfer of responsibility for infrastructure within a subdivision from the municipality permitting it to the HOA itself. The long-term problem is that association leadership not only changes over time but often lacks expertise pertaining to the significant risks and responsibilities involved. We suggested that local planning and other agencies extend technical assistance to overcome this gap. This gap, however, remains a serious problem in many communities. When disaster strikes, the idea of having shifted responsibility will become transparently short-sighted because the city or county will be providing emergency response and assistance, just as is happening in Surfside. It is impossible to ignore a disaster.

We noted that many such associations assume responsibility for stormwater infrastructure, such as detention ponds, seawalls, and levees, or even private dams. If they fall into disrepair, the flooding consequences can be severe, so provisions for inspection and maintenance are critical. It is vital for such association boards to understand, for instance, that levees are never totally flood-proof and failure can have various causes. Privately built and owned levees exist across the nation, many in poor condition, according to the American Society of Civil Engineers.

In short, these owner associations have assumed responsibility for some key areas of local flood risk management, including ponds, spillways, erosion and sediment control, flood control structural repairs, drainage improvements, managing vegetation that reduces flood risk, bridge maintenance, and open space management, among other possibilities. Given the potential financial and expertise limitations of these private associations, it may be incumbent upon local governments, in approving development, to assert some degree of control over the standards for approval, for which we offered several major recommendations for requirements related to maintenance costs and final plat approval.

There is, in the end, no perfect way to ensure adequate protection against disaster, but we were hoping to raise the level of concern and discussion, and attention to detail, in the relationships between local governments and owner associations as a way to avert tragedy and financial meltdown following disaster. It is not my intent here to explore the issue in depth but to introduce readers to the depth of the questions that these situations entail. Those wishing to learn more can follow the links to additional resources.

Jim Schwab

Drifting into Disaster

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Scene from the Sacramento-San Joaquin Delta

Scene from the Sacramento-San Joaquin Delta

Across the United States of America, about one in five people live under the rules and structures of some sort of private association that governs common property interests. These can be condominium associations, homeowners associations, or similar entities that are somehow responsible for levying fees and maintaining communal property. To degrees they often may not realize, the residents are thus controlled and constrained by the decisions these associations make, which often may concern themselves with details that a local government would not even consider, such as the color of aluminum siding, allowable holiday decorations, and other matters with minor impacts on the quality of life. Many homeowners associations are established by developers at the time they get permits to create a new subdivision. In some states, local governments are happy to offload responsibility for infrastructure maintenance, such as private roads, onto these associations while coveting the property taxes they will still pay.

The implications of all this were brought to my attention in the past week or two by Chad Berginnis, the executive director of the Association of State Floodplain Managers (ASFPM). He has been working with me on material for a future report we plan to publish at the American Planning Association on subdivision design as it relates to areas with flood hazards. The issue that concerned him as he wrote a chapter on subdivision standards for local governments, which have the primary responsibility for permitting new development, is how well these private owner associations can sustain over time the financial responsibilities for infrastructure designed to protect their properties from disaster, most notably but not exclusively, flooding.

Among the items that have come to my attention is a paper by two California attorneys, Tyler P. Berding and Steven S. Weil, disturbingly titled, “Disaster! No Reserves. No Insurance. What’s Left if a Natural Disaster Destroys a Community Association?” They begin with a cautionary tale about the Bethel Island Municipal Improvement District, actually a California special district, not a homeowners association. Its mission is to maintain and improve the levees that surround the Sacramento Delta island of 2,500 residents, where the interior is seven to 15 feet below sea level. To say that their survival depends on well-maintained levees is no exaggeration. Moreover, in that part of California, the levees are subject to collapse from earthquake shaking as well as from overtopping in a flood. I have some idea of their peril because four years ago, a representative of the California Department of Water Resources (DWR) took me on a six-hour guided tour of the levee system in the delta area, plying me with a number of the background studies by DWR of the overall situation. There are hundreds of such islands throughout the Sacramento-San Joaquin Delta, many used for agriculture, and some developed. In their 2012 article, produced about the time of that tour, Berding and Weil note, “But the district is broke.” Voters “soundly” rejected a 2010 parcel tax measure to fund improvements, and much of the district staff was laid off. The levees were deteriorating, to some extent “suffering damage by beavers and rodents.”

It is disturbingly easy for homeowners association or other private association board members to take their eyes off the ball of maintaining adequate reserves and resources to address dangers that seem less than imminent, and even to forget why they are responsible for collecting assessments in the first place. And it is even easier for residents who must approve some of those assessments to lack meaningful knowledge of the consequences of either depleting or failing to maintain adequate reserves for unfortunate natural events like floods, earthquakes, or other disasters. Once they begin sliding down that slippery slope of amnesia and unawareness, it is not long before they have put a good deal of common and individual property at risk. The few who may be aware of the long-term consequences often may lack the ability to make their case to less concerned neighbors.

This issue is one of concern in the field of urban planning because new subdivisions, in particular, often arise at the edge of metropolitan areas in unincorporated county lands or small towns, where governance capacity may be limited and resistance to government regulation particularly high. The result is that oversight is weakest, and the desire for new development highest, precisely where the need for that oversight may be greatest. In regulatory terms, it is the theory of the weakest link. One of our motives for the new report (underwritten by the Federal Emergency Management Agency) is to help shore up those weak links with stronger guidance about sound practices in reviewing plans for new subdivisions. Berding and Weil were serving a similar purpose, at least in the California context, by describing sound practices for community associations, particularly in sustaining adequate reserves for contingencies such as disasters.

But finances are only part of the problem. Sometimes, the leadership of such associations can become so focused on issues like aesthetics and conformity that they lose sight of larger issues like public safety. In the past, the National Fire Protection Association, which supports the Firewise Communities initiative, has trained its attention on the question of covenants that run counter to public safety, for example, by inhibiting well-researched methods for containing wildfire threats. Many of these techniques involve either landscaping or building design, yet some associations have rules limiting tree trimming or landscaping that would aid in wildfire mitigation. In Safer from the Start, NFPA’s 2009 study of the issues involved in building and maintaining “firewise-friendly developments,” a sidebar notes that the state of Colorado’s recently passed “Colorado Common Interest Ownership Act,” among other measures, basically invalidated a number of types of association covenants and restrictions that inhibited defensible space around private dwellings in order to advance wildfire safety statewide. In effect, the state was saying, with regard to rules that made wildfire safety more difficult to enforce, “enough.” At the same time, the publication overall provided a significant amount of sound advice about best practices in wildfire protection in rural subdivisions and new developments.

That seven-year-old NFPA advice recently got a new boost from an interesting direction: Green Builder Media just recently issued its own e-brochure, “Design with Fire in Mind: Three Steps to a Safer New Home,” in cooperation with NFPA. Green Builder Media has more of a direct avenue to influence those developers who want to build safe, resilient, energy-efficient communities.

The fact that these resources have continued to materialize on a regular basis over the past decade or two indicates, to me, that the subject of good design and homeowner association responsibility is not going away any time soon. It is the job of planners, floodplain managers, and local and state officials to ensure that those responsibilities remain on their radar screens and are taken seriously. One-fifth of the American population depends to a significant degree on the quality of their oversight.

 

Jim Schwab