Land Takeover Question

merrygardenerSeptember 14, 2012

Big long rant warning! This question is probably most appropriate for some other forum, but I really appreciate and trust the collective minds of you decorating folks, so here it goes:

I have about an acre of land that backs up to a 72' piece of "open space" that belongs to the homeowner's association of the neighborhood behind me. The neighbor who owns the land adjacent to that (directly behind the hoa land) has taken over the property (leaving about 10' of "open space" in places and up to 50 in others) and has graded a (gravel) driveway, parks a trailer, van, backhoe, has a garden shed, compost pile, etc.. on that land. He has cleared native plants in order to accomplish the above. When I moved into the house 17 years ago, I didn't even know there was a home back there.... and as a result of us needing to remove some of our beloved second growth woods (in PNW) for a septic drainfield, we see lawn, one vehicle, etc... So, my "dream" wooded property is no longer.

I spoke with the homeowner last spring, and really tried not to be argumentative or overly aggressive, but he denied that he was a) causing any harm, b) had removed any plants and had intended to keep things as they are- that he had a right to do so since he helped to build the development back in the day. The land in question is part of an "L" shaped property, and the rest of the "L" is completely native plantings.

My plan was to approach the association's board and ask (demand?)that they uphold their "open space" (which, by the city's definition could be greenbelt, a playfield, etc... but it certainly isn't supposed to look like some property owner's back yard!) by having the land surveyed (we had ours done last year and the markers are clear... it would be easy for theirs to be done) and that they maintain theirs as it is designated, with aggressive planting of native plants- consistent with what is growing around the wiped out plot of land. This would require this homeowner to completely change his property/garden layout since his driveway is halfway on the hoa property... he'd have to take out lawn/shrubbery to access his garage.

This is so therapeutic, just writing this! My question for you: Do you think I am making a big deal out of "nothing?" Should I invite this "overt conflict" into my life? It really has bothered me for about 2 years... that festering "argggghhhh" kind of bother. I know that many people live in neighborhoods where they have full view of their neighbors... it just isn't my current desire!

Thank you for reporting this comment. Undo

How large is your HOA? Are others on the board familiar with the current situation? Is your backyard neighbor on the board?

It appears you're the one most directly affected by the situation. You will likely further upset your backyard neighbor by going to the group. If your neighbor did remove his property from the adjacent area, does that open it up to everyone in the homeowners association to use? Is that a battle you wish to pursue. Perhaps you could bring it to the attention of a current board member outside of a meeting to see if he/she is aware of the situation and if there's a long term plan for the space. That may give you some insight as to the next action to take.

    Bookmark   September 15, 2012 at 8:27AM
Thank you for reporting this comment. Undo

Depending on the law in your area, he may already have acquired legal ownership of the extra land he's claimed by adverse possession. I'd check with your HOA and make sure they're aware of the situation.

    Bookmark   September 15, 2012 at 9:01AM
Thank you for reporting this comment. Undo

How many square feet of the HOA's land has he taken for personal use?

    Bookmark   September 15, 2012 at 9:01AM
Thank you for reporting this comment. Undo

If he doesn't have an easement etc. Then he'd likely be in violation with the HOA, however as for returning it to native I don't think you could do or request that. You know the area could be a play ground and that doesn't require any vegetation it could be a completely open field and you would be able to see what is behind it, i.e. your neighbors to the back.

If you really care about that view it is really up to you to create the view you want on your property. You can't expect that HOA land to always remain a buffer of vegetation or the way you want it to look. Only you can control that by doing what is needed on your property.

Now for the guy stealing the land it sounds like he is trying for adverse possession and doing something that doesn't sound right. About the only thing you could do is point it out to the HOA and let them decide what is needed. Could be he got approval or got an easement.

    Bookmark   September 15, 2012 at 12:21PM
Thank you for reporting this comment. Undo

Thanks, all. The photo shows my property in red and the little "L leg" behind it. My HOA board is aware of the situation, but it only affects my property. From a conversation with the city code enforcement officer, the amount of time he has possessed the property does not affect the ownership status. Hilltop, thanks for the suggestion of contacting one board member. The board of their HOA may not even be aware of this adverse possession. The larger section of the property is a shoreline to a lake and all of the "open space" area (there are three) adjacent to this HOA have functioned historically, although listed as "openspace," as greenbelts. The only access for the neighboring HOA to this land is through the land on the other side of his or through his property. I have little concern about others using the land in any way.

    Bookmark   September 15, 2012 at 12:28PM
Thank you for reporting this comment. Undo

If the open space is deeded as protected space, then there is a violation. You can email me with where you live and I might be able to I work directly with land use issues and protected spaces.

Generally as a condition of being granted a land use permit, there are required to be protected areas that the developer then deeds to the HOA for maintenance. The deed will specifically spell out what cannot be done on the open space, and I'd imagine that would limit any type of fill or vegetation removal (cutting grasses or invasive species is not considered removal).

It's interesting that you bring this up, as I was just involved with a situation where a landowner had put in a swimming pool in an area covered with a conservation easement on his own land. The City has won a lawsuit against these folks and they're now going to have to pay hundreds of thousands in fines and have the pool and all associated landscaping removed and restored.

In any event, check with your local planning department to see if there is anything in the city code. It is public record. Regardless if this landwoner helped build the development or not, the deed should outline the specifics of the use of the property.

Since I live & work in the PNW, I can tell you that Oregon's land use laws are very specific. WA state is pretty close behind. This story is one that is about some people who figured they could do what they wanted on their land, even tho their deed clearly showed it was protected space.

Here is a link that might be useful: building 'open spaces'

    Bookmark   September 15, 2012 at 1:23PM
Thank you for reporting this comment. Undo

merrygardener, I am on the board of an HOA. In one case we granted permission for a homeowner to use a few feet of open space to enclose his rear yard with a fence because of some tree placement and the fact that his yard really didn't back up to anything or anybody it was a sensible solution to his problem. Letters were drafted and we made sure to clarify that this was a temporary situation and the land he had "borrowed" which was only 2 or 3 feet over his actual property line, was not his permanently.

Your situation is different. That land actually belongs to everyone in your neighborhood. Everyone who pays HOA dues owns that open space. It is a neighborhood amenity and no single homeowner can squat on it.

Your HOA needs to act. You should also notify your towns zoning and permits department. As Pesky says, if this is conservation easement land then your neighbor's in trouble. Your neighbor cannot treat that extension like part of his yard. If that area happens to be categorized as wetlands it is also off limits.

Sometimes an HOA is not very proactive in these situations and you are better off going to your town zoning officer. It is not always for lack of good intentions, but I know our HOA is all volunteer run and we are busy so it takes us a while to check into things, write letters, follow up with homeowners. We have several people who perpetually violate the rules and seem unwilling to cooperate. We do have some legal powers but we try to work things out before using things like fines and we always try to get the town involved for something like this since they have more resources and also more extensive legal powers.

    Bookmark   September 16, 2012 at 6:03AM
Thank you for reporting this comment. Undo

I want to add that there are specific laws in my area about vegetation, particularly trees, due to the important role plants play in erosion control and stormwater management. Those shrubs and trees that have been removed may have been required by law to be left alone. For example, a developer across the street from us has, as part of his building plan, been required to plant a certain number of trees of a certain caliper (size) to meet the state's stormwater management requirements. I don't know the law in your area but your zoning officer would. Judging from the number of things this homeowner has done -- I mean, a DRIVEWAY? Regrading? he's in the wrong. A driveway is also what's called impervious surface and we have impervious surface ratios in my area. Impervious surface cannot exceed a certain proportion of land again, a stormwater management issue. Adding impervious surface without a town permit is a zoning violation here. Moving heavy equipment into HOA open space is also a zoning violation. The more I think about this the more I think your local officials should be involved. As an aside, overuse and compaction of that soil, which may or may not be conservation easement, is bad for the soil and can affect drainage. Not good. Your HOA may be very lax but this does not sound like you being a PITA. In fact, I think you probably should have gotten the ball rolling on this much sooner. I disagree with anyone who says it's up to you to control your view. When you purchase property in a development and the property is contiguous to deeded common ground your property price was probably higher to reflect the desirability of the lot. Your lot may have cost more than someone without that asset. Anything that ruins that buffer could cost you money when you go to sell.

    Bookmark   September 16, 2012 at 6:15AM
Thank you for reporting this comment. Undo

Correct me if I'm wrong but the property in question is part of a another neighborhood's association. This guy could be doing this to see if he can get away with it or he may be on the board of the association and already has permission.

I think much depends on where you live. In my town, if you complained about this to the town you'd get a smile and a nod. A house we just purchased has many neighborhood covenant violations. But the previous owner was an attorney and the HOA didn't have enough money to keep bringing him to court. We are fixing things but, at least around here, the covenants are really unenforceable guidelines. If someone wants to be a jerk and tick off the neighborhood there is really no recourse.

    Bookmark   September 16, 2012 at 6:58AM
Thank you for reporting this comment. Undo

This is difficult since you are the only one that seems affected by your neighbor. You are right to be upset and want to go through the right legal channels to correct the situation.
However, that said, it might be a long stressful battle, one that you might not win.
Is there any way you can do some landscaping or put up a decorative trellis so that you can improve your view? It sounds that you are upset because you can see the tractor etc.

    Bookmark   September 16, 2012 at 10:25AM
Thank you for reporting this comment. Undo

Judithn, come on over for some tea! Thanks for your supportive comments. My husband maintains that we aren't "harmed" by his actions, but my stomach would disagree! Imagine a second growth forest much like the Olympic National Park complete with moss covered 10' around cedar trees, ferns, etc.... Backing right up to his parking lot..... Add the fact that I can easily SEE his property year round due to our required removal of vegetation (see original post), argghh!
Deee, you are correct; the property is located in another HOA. I did speak with the city's code enforcement officer last spring and filed a "formal complaint," however this was just me on the phone with him, describing the situation and him asking "do you want it to be a complaint?" I checked in with him again this summer and he had taken no action (he was going to contact that HOA's president.... and I gave him the phone number). He suggested that he call and I just wait. I'm sure there are other more pressing violations going on out there and this is obviously not a high priority.
I think that I will continue to pursue this with greater gusto. The land is adjacent to property covered by the shoreline management act so isn't covered by that policy, but certainly is fragile and important in terms of a wildlife buffer and part of the whole ecosystem.
Thanks again to all your thoughts. I do feel a bit whiny after seeing the post on the discussion side with the home built inches from the property line; now she has a troubling situation!

    Bookmark   September 16, 2012 at 1:47PM
Thank you for reporting this comment. Undo

merrygardener, I would love some tea but I'm clear across the country! While reading all these postings again I had another idea -- does your town have some form of government like a council or board of supervisors or planning commission where residents are invited to speak? Township officials in my area generally meet twice a month. There is always opportunity for public comment. People stand to announce events, complain, compliment, comment, etc. In our town, if an item is on the agenda public comment occurs immediately after the agenda item. If an item someone wants to comment is NOT on the agenda, the person is invited to speak during general public comment. In my opinion, a zoning officer that is not responsive (and yours sounds less than stellar) might actually become more helpful if you approach this from the top down. If you go to the meeting, thank the elected officials (you could also go to a planning board meeting, if you have that) for their public service and ask some questions like 1) is this a typical situation in town? 2) how does the town usually go about addressing violations of this nature? Be courteous and unemotional. They will ask you to describe your situation. The goal is for this to get up front in people's minds. It also gives your zoning officer a kick in the pants. Your zoning officer was hired by your township council or supervisors or mayor -- no matter what form of governance you have, people like your zoning officer work for the elected leaders and for YOU. Your neighbor's encroachment regardless of him being a member of another HOA may be a zoning violation. Or it may not be. But you have to find out the status of that property and the people on that dais (or however they sit) will know its status OR will direct someone who will nail down its actual status so you know what you're up against. If it is a violation I don't think the membership in another HOA invalidates that. These are very much squeaky wheel getting the grease situations. Also, you may want to bring someone in your neighborhood who is sympathetic to your plight as a witness to speak in your behalf. I would also bring photographs. Ideally you would have photos of that land in a pristine state pre-violation. Once you've gotten them to address this in a meeting it becomes part of the meeting minutes which makes it an ongoing agenda item. A problem such as yours is not aided by only working with one municipal official, in my opinion. Save all correspondence, print out emails, take pictures. I agree with you that the desecration of natural habitat is very distressing, aside from your loss of viewscape. I would keep hammering away. These things do take a loooong time. It could be a few years. Be patient though. Sometimes people are counting on your losing interest or intimidation by stonewalling you. Hang in there and you will prevail.

Land use and zoning is not a subjective thing. There are ordinances and codes that govern use of the land. You need to figure out what that status of that land is, what ordinances are in your area, and then get the zoning officer to do his/her job.

There is corruption in small towns, sweetheart deals, people given access and privileges because of who they know or how much they've contributed financially. I've seen it in my area, very bad abuses of power. I'm not saying it's the case here but I only mention it because I don't know why your zoning officer is dragging this out.

    Bookmark   September 16, 2012 at 4:40PM
Thank you for reporting this comment. Undo

Good advice here. In my neighborhood, our HOA filed and won several lawsuits against homeowners who did clearing in the greenbelt behind their homes in violation of the neighborhood covenants and city ordinance. Good luck!

    Bookmark   September 17, 2012 at 10:28PM
Sign Up to comment
More Discussions
Can you ID this trim?
Does anyone know who makes this trim? I am trying to...
Are cordless roller shades practical with a large picture window?
Hi all! I plan to replace my windows and doors this...
Question about decorating rooms that lead to another
Both my living room and kitchen are visible from my...
Dining room chandelier selection, please help!
Hi everyone, I need to pull my dining room together...
JCPenny Linden Street Furniture Slip Cover?
Does anyone have the JCPenny Linden Street Furniture...
© 2015 Houzz Inc. Houzz® The new way to design your home™