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