Detention Ponds Issues

8/12/17 Board Update: Status on the Detention Ponds

Dear HOA Members:

Below are the latest activities happening in regards to the detention ponds over the past several months including:

State Environmental Policy Act (SEPA): environmental impacts statement required because earth work involved (completed)

State Hydraulic Project (HPA): Washington State Department of Fish and Wildlife approval for earth work next to streams is required (working with Fish and Wildlife to determine what is required to stabilize the stream bank, but no ETA yet provided)

Geotechnical Evaluation of Stream Bank: a geomorphological engineer is required to evaluate the stability of the stream bank to ascertain bank stability for the pond work (this task can only be completed when the above HPA is completed so the Fish and Wildlife requirements can be worked into the evaluation of the stream bank)

Unfortunately, the process in working with State agencies is cumbersome and slow. However, this work is necessary to determine what will be necessary going forward.

Respectfully Yours,

The Forster Woods HOA Board

4/16/17 Board Update: HOA Negotiations with the City of North Bend Regarding the Sidewalks/Trees/Ponds

Dear HOA Members:

Negotiations with the City regarding the sidewalks/trees/ponds are proceeding.

The HOA Counsel (Greg Cromwell) has advised the Board to inform members that “He does not recommend sharing the details of offers and counteroffers in process because of the necessary confidentiality of successful legal negotiations.” However, we can share the general timeline and results of the process thus far and the estimated timeline going forward:

History:

2015: HOA learned for first time that the City of North Bend had changed its position as to who was responsible for maintenance and repairs of sidewalks and trees; before that it was assumed to be the City’s responsibility since it had always made sidewalk repairs and trimmed and cut the trees.

2016: Assumption by the HOA that, because of the years of City maintenance of the ponds, the City was responsible for them.

December 2015 – Major storm event, during which one of the pond walls was breached by a falling tree, and a stream, misdirected by falling debris, flowed into the ponds, all of which resulted in pond containment failures and significant flooding of streets and homes.

Week before the Holidays – Emergency repairs were performed to shore up the pond walls and properly redirect the flows of the incoming and outgoing streams. Cost the HOA $17,000 in emergency repairs!

December 2015 – Present: Floods initiated multiple, ongoing discussions with City Administration and Department Heads regarding crucial, needed repairs on the ponds.

June/July 2016: Engineering surveys of the ponds.

July 8th, 2016: Board Meeting with owners of homes surrounding the ponds regarding the surveys and process as we knew it at the time.

During 2016: Through extensive documentation searches, a recorded contract between the City of North Bend and the developer was discovered proving the City is responsible for the restoration and maintenance of the sidewalks and trees.

During 2016: Ongoing research of documentation occurred regarding the issue of whether the City or the HOA is responsible for the restoration and maintenance of the ponds.

June 2016 – HOA commenced discussions with the City Attorney regarding sidewalks/trees/ponds.

July 19th, 2016: Formal meeting between the HOA Board, Legal Counsel, HOA Management and the City – Mayor, Head of Public Works, City Attorney, etc., to discuss needed maintenance/restoration of the sidewalks/trees/ponds.

July 2016 – Present: City review of engineering surveys of the ponds.

Current Negotiations:

March 14th, 2017: HOA received City offer regarding restoration of sidewalks/trees. Offer not accepted by the Board.)

March 23rd, 2017: Board met with HOA Attorney to draft a Counteroffer to the City regarding

the restoration/maintenance of the sidewalks/trees/ponds.

March 24th – April 17th, 2017: HOA Board worked with Counsel to refine the Counteroffer.

Pending (Week of 4/16/17 -- 4/20/17): Submission of HOA Counteroffer by Greg Cromwell, the HOA Attorney, to the City regarding the sidewalks, trees and ponds.

Predicted Timeline:

May 15th, 2017: Required deadline for City Response to HOA Counteroffer

Options if the City does not accept the Counteroffer:

Further Negotiations
If resolution is not possible with negotiations, Mediation with a professional mediator to try to reach agreement.
If resolution is not possible with negotiations or mediation, Litigation: Case is strong; however, attorney fees will be expensive and the fees are non-recoverable from public entities.

Note: An All Member, Annual Meeting will be scheduled as soon as the HOA Attorney / Board receive a response from the City, and the path forward becomes clear, so that all members can contribute to the important discussion of options for the restoration and maintenance of the sidewalks, trees, and ponds.

Please submit any questions by clicking on the "Contact Us" button above.

Respectfully Yours,

The Forster Woods HOA Board

12/11/16 Board Update:

Dear HOA Community,

In response to the last posting regarding restoration of the physical integrity of the detention ponds and legal negotiations with the City of North Bend for the City to assume responsibility for the ponds' maintenance, a few members have asked some very good questions. The answers and clarifications might be helpful for all, and thus, are added below as a follow-up posting:

1.) Why do we need extensive repairs on the ponds if the ponds seemed to survive well the rains of last month November 2016 - the wettest November on record?

Response:

November 2016 was the wettest November on record; however, the rain was, for the most part (except for a few downpours), continual, but steady and light, and thus, absorbed by the ground with a manageable effect on the ponds. (Note: The areas' multiple rivers also contained this persistent rain and thankfully did not flood last month.) Regarding the ponds in their current state, the City and the engineers are not concerned about manageable persistent rain, but rather, they are worried about the potential, disastrous consequences of North Bend's frequent and often successive, heavy winter rain storms.

2.) Why can't the HOA proactively proceed with any work that needs to be done on the ponds without consulting the City?

Response:

The HOA Board is trying to be fiscally prudent and is focused on a permanent solution to the issue of the responsibility for the ponds' maintenance. Therefore, the HOA Board, guided by your HOA Attorney, Greg Cromwell, is pursuing a list in writing from the City of North Bend of the repair work on the detention ponds that the City will require the HOA to complete in order for the City to legally assume maintenance of the ponds. The City has assumed responsibility for maintenance of detention ponds in every other neighborhood in North Bend. Once the City assumes responsibility for the ponds, the City will be able to use its storm water expertise to coordinate its efforts to manage all the City’s detention ponds to protect vital areas of the City during and after storms. The HOA is determined through legal means to permanently remove this Albatross from the neck of the community!

At that point, the Board, the homeowners surrounding the ponds, the HOA Manager, Dennis Howard, your HOA Attorney, Greg Cromwell, relevant people and engineers from the City, and the engineers who completed the survey will meet to discuss what needs to be done and how the work can be accomplished with minimal impact to the homeowners surrounding the ponds. Then the work will be submitted for bids.

3.) Why can't the repair work on the upper pond be accomplished by accessing the upper pond from the lower pond?

Response:

This alternative access was investigated at the Board's and Dennis's request. According to the engineers, access to the upper pond from the lower pond for restoration and maintenance is not possible because the banks of the lower pond will not support the transport of the necessary heavy machinery and equipment needed to repair the upper pond.

Hopefully, these responses were helpful. If you have further questions, please use the "Contact Us" option on the FWHOA.com site to submit additional queries.

Happy Holidays!

Respectfully,

The Forster Woods HOA Board

10/28/16 Board Update:

Hello Everyone,

We, as the Board, are posting the most recent updates to the dentention ponds issues.

Review of the Progress thus far:

The Engineers' report regarding the state of the detention ponds and critical areas in need of repair finally arrived on July 20th.
The HOA submitted the report to the City for its review.
The City sent the report back to the Engineers for amplification of aspects of the Engineers’ study relating to the creek on the East end of the lower pond. (The emergency repairs to this area of the ponds last December following a major rain storm were regarded as temporary, even though they cost the HOA $17,000. The City is asking the Engineers what the HOA will be required to do at this location next to the ponds to make the repairs permanent and to prevent this catastrophe from happening again. The maintenance and repairs in this area are difficult because the creek takes a 90 degree bend here, making it difficult for machinery to maneuver between the pond and the creek. The City is currently awaiting the Engineers’ reply.
Meanwhile, the engineers are meeting with the Department of Fish and Wildlife to secure the approval for repairs. The Department of Fish and Wildlife issues the permits for maintenance of the creeks and ponds because the creeks are salmon-feeding streams. The City can only issue permits for repairs during emergencies, such as it did for the HOA during and after the floods we experienced following the major storm in December.
We hope to hear back from the City, the Engineers, and the Department of Fish and Wildlife very soon. We will post updates as they become available and continue to have direct contact with owners surrounding the ponds who understandably have individual questions.

Respectfully,

The FWHOA Board

7/9/16 Board Update:

Hello Everyone,

We, as the Board, are posting an update in response to the recent feedback regarding information posted to the FWHOA website. The Board and Dennis have met with the affected homeowners regarding the pond access easements. The homeowners were cordial and neighborly and are willing to work with the Board to reach viable solutions to restore the ponds. While we are still awaiting specific information from the Engineers regarding solutions for the easements, we have a mutual respect for one another regarding these homeowners' concerns and those of the FWHOA.

We all want the same ideal: a community of neighbors willing to work together to ensure that the properties in Forster Woods are protected and will remain safe. There is an immense amount of work that needs to be done regarding restoring the detention ponds, removing and replacing the sidewalk-damaging trees and rebuilding the uprooted sidewalks.

The Board recognizes effective and frequent communication is key to ensuring all voices within our HOA are heard and respected. These are very sensitive subjects that affect all members of the HOA. As the Board gets more information, we will update the HOA and provide timely and periodic updates. While we may not always have new information to disseminate, we will continue to let the HOA know that we are still working and waiting for information along with you. If you have questions please reach out to the Board through the FWHOA website, the official communication site. The Forster Woods Facebook page will only be used as a tool to make HOA members aware that updates have been posted to the official site.

Thank you all for your continued understanding as we work through these very important issues.

Respectfully,

The FWHOA Board

7/1/16 Board Update:

Dear HOA Members,

A letter was sent to HOA members with homes bordering the detention ponds on June 15, 2016. In a continual effort to provide information to all homeowners, the Board is posting this letter on the HOA website, available below this update.

Regarding the HOA’s current efforts to recondition the ponds, the Board is awaiting the Surveyors' and Engineers’ Reports, which should arrive in a few days. Once the HOA receives these reports, the Board will submit the engineers’ recommendations to the City for their review and approval in order to secure the necessary permits to commence the project. After receiving input from the City of North Bend, the HOA will seek bids for all required aspects of the project. As discussed at the Annual HOA Meeting in March, the HOA’s goal is to ultimately have the City of North Bend assume permanent maintenance of the ponds. Before the HOA and the City can reach an agreement regarding the maintenance of the ponds going forward, however, the HOA must restore the ponds, originally built to the 1979 King County Surface Water Code, to a sustainable condition.

However, please note that the timing of the reconditioning of the ponds is dependent upon the ability of the HOA’s contractors to access the ponds using easements across parts of the owners’ lots abutting the ponds. At least one pair of homeowners has questioned the validity and enforceability of the pond access easements and has told the Board that they reserve the right to assert that no easement is valid and effective in reference to their lot. The owners have instructed the HOA to take no further action to use any pond access easement until the owners' concerns are resolved. These owners have warned the Board that they will sue the Association “to protect their Property and their rights” unless matters are resolved to their satisfaction, and they have instructed the Board that the Association and its agents are forbidden from entering their property for any reason, unless prior written consent is given by the homeowners. We hope these owners will not block the HOA’s contractors from accessing the ponds to perform the necessary work to restore the ponds. The Board is working with these owners in the hope that the necessary pond access on their lot will be made available, so that the HOA can pursue the repair and restoration of the ponds.

Unfortunately, the pressing legal issues arising due to our necessary interactions with the City, and now with the pond access easement owners, is costing the HOA a great deal of legal fees that were not part of the HOA dues budget, and it has been necessary to draw the funds for these legal negotiations from other projects.

Please feel free to direct any questions regarding the restoration of the ponds to Dennis Howard, HOA Manager using the HOA website link.

Sincerely,
The Forster Woods HOA Board

To view the letter, please click here.

4/27/16 Board Update:

At the 3/31/16 Annual HOA Meeting, the HOA extensively discussed the serious issues with the detention ponds. (Please refer to the Minutes.) The Board is diligently working to convince the City to take over the maintenance of the ponds. Greg Cromwell, the HOA Attorney, is currently drafting a letter to the City of North Bend regarding the restoration and maintenance of the ponds, which he plans to submit to the Board for input this week and to the City very soon. The letter will then be posted on the HOA Website.

As an extension of the HOA’s efforts, Dennis Howard, the Forster Wood Property Manager, asked Mark Rigos, the Public Works Director for the City of North Bend, to provide the HOA in writing exactly what maintenance needs to be performed on the detention ponds to increase the likelihood that the City of North Bend will assume responsibility for their maintenance. Mark has not yet responded in writing; however, during the HOA meeting, he commented that although the City has not promised to assume responsibility, the possibility increases if the HOA established the access roads easement boundary lines and reconditioned the

ponds to a properly working standard. Regardless of whether the City takes over the ponds, however, it is still necessary to

recondition the ponds now. As discussed at the 3/31/16 HOA meeting, there was confusion for years regarding who (the HOA or the City) was responsible for the ponds’ maintenance that delayed their upkeep. (Please refer to the Minutes.) The ponds are now in poor condition, and the HOA wants to prevent another failure event, such as the one that occurred during a storm last winter on 12/8/15. The Northwest Weather Service forecasts that at the end of the summer, the

Northwest will enter a La Nina weather pattern, which usually creates conditions that generate

wetter weather, so restoring the ponds is a pressing issue.

Surveying the boundary lines of the access road easements is a necessary part of the HOA’s due diligence and the first step in handling the issues surrounding the ponds. We all want the city to take over the responsibility for maintaining and repairing the ponds at its cost. At the HOA meeting, Mark Rigos informed the HOA that for the City to consider assuming the maintenance and repair of the ponds, they must be brought back to certain standards, includingmaking sure that the easement access roads are secured and that their boundary lines are surveyed, and locations are marked.

The Board therefore hired a survey company, Encompass Engineering and Surveying, to locate and mark the easement access roads to the ponds. Dennis told the surveyors to let the HOA know when they would start the work and to be sure to knock on the doors of the homeowners involved to let the owners know what the surveyors were doing before entering their properties to commence work. The surveyors did not follow the HOA’s protocols: the HOA was not informed when the surveyors would be starting their work; the surveyors did not give the homeowners advance notice that they would be working on their properties; and the surveyors

apparently were even rude when some of the homeowners questioned their presence on their property. Dennis Howard filed a formal complaint with the survey company regarding their failure to follow the requested protocols. Dennis and the Board were just as surprised as the owners by the surveyors’ unprofessional business conduct!

Only some owners have lots subject to the pond access road easements. The Board will be sending separate letters to those owners with more information. Easements are a right to use the land owned by another. The affected owners own the land on which the easements exist, but an easement grants the right to pass over legally described portions of land in order to, in this case, access the ponds for the purpose of conducting maintenance and repairs as needed. Easements are identified in the Title reports that prospective purchasers receive before closing their purchase of land and are usually also identified in the legal descriptions on the Deeds received by owners. These descriptions in a Deed ensure that potential buyers are aware that part of the property they are buying is subject to an easement right.

Owners are allowed to use the land that is subject to an access easement, but not in a way that blocks or unreasonably interferes with the ability to use the easement. For example, an owner can plant grass or other landscaping that doesn’t interfere with being able to drive on an easement; however, an owner cannot install a permanent improvement or one that otherwise interferes with the ability to use the access right. And, at such times as the person (or in this case the HOA) holding the easement right needs to use the access, the land on which the easement exists must be open and useable for the access purpose.

As the ponds are restored and maintained, the HOA will do everything possible to work with the affected owners to minimize the impact on them and their lot. Please understand, though, that the HOA cannot bring the ponds back to the condition that the City will require to consider assuming maintenance without the access easement roads being open and usable for moving equipment across them to recondition the ponds. And, the City will not consider taking over maintenance of the ponds unless the access easements are properly located, marked, open and usable. Mark Rigos of the City expressly stated that the HOA has to survey the easement

boundaries for these purposes.