We had a severe rain storm. Two residents had 7′ of water in their basement. Who would be responsible for the storm drain retention pond fix the city or our Association?
Not an easy question to answer with the information given.
Typically, as part of the approval process by the municipality the burden of
constructing and maintaining the detention pond is placed on the developer
and the community. One would have to inspect the minutes of the planning
board meetings and the resolution granting final approval which would
contain all of the conditions of approval to determine responsibility.
Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
856-414-1800
Fax:267-219-4838
Generally, what a developer builds on private property belongs to the developer and therefore, subsequent owners (in your case, the Association). If the municipality agrees to take over such a facility, that agreement generally appears in the Resolution of approval by the Planning Board or in the Developer’s Agreement between the developer and the municipality. Examination of these documents is crucial. They may be obtained by OPRA request to the municipality.
If the responsibility to maintain the basin rests with the Association, the Developer must disclose that obligation in the Public Offering Statement. You may also find the maintenance costs associated with facility maintenance, repair and replacement in the budget (including the reserve schedule), though the costs associated with detention basin maintenance may not have its own line item. Such costs may be combined with other similar costs.Robert Griffin, Esq.Griffin Alexander PC415 Route 102nd FloorRandolph NJ 07869-2100rgriffin@lawgapc.comTel:973- 366-1188Fax:973-366-4848
Without seeing the Governing Documents it is difficult to answer the question. If, as is usual, the retention pond belongs to the Association and there is no agreement or other writing to the contrary, then it is responsible for maintenance and repair (and should probably make a claim against its insurance).
Sara A. AustinAustin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
The answer depends on the original agreement between the Association (actually, the developer) and the City when the Association was established. If the retention pool was created by the developer and belongs to the Association, then it is likely that the City insisted that the Association also assume the obligation to deal with drainage issues. However, if the drainage pond was pre-existing or is used by other residents beyond Association boundaries, it is possible that the City took over, or retained, the obligation to ensure adequate drainage. You need to check the written agreements that were recorded when site plan approval was originally granted.
Kenneth Jacobs
Smith, Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
914-476-0600 X4102