Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #50 • August 2010
Left Holding the (Sand) Bag
Who will pay for the damage caused by rising sea levels? It Could be Your Homeowners Association!
by Tyler P. Berding, Esq.
The San Jose Mercury News: "From Antioch to North Richmond to Redwood City, a slowly rising Bay could endanger the properties of as many as 270,000 Bay Area residents and cause some $56.5 billion in damage by the end of the century unless measures are taken to protect them, scientists warn.
But surprisingly, few cities are taking action"
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"November 5, 2008…In the event of projected flooding sandbags are available at the Benicia Corporation Yard. Some assistance may be available but residents should bring shovels and plan to fill and load the bags themselves."
The chance of flooding in cities in and around San Francisco Bay is not just speculation. It has happened many times in the past and it will happen again and again if sea levels continue to rise or a "perfect" storm joins with normal high tides. It's easy to see why. Take a look at one of the several interactive devices used to illustrate the first areas around the bay that will flood when the sea rises. It should come as no surprise that they are the same locations where the bay was originally filled to create housing and commercial developments. These low-lying areas—Redwood Shores, Alameda, Vallejo, Alviso and many others—were bay bottom and tidelands just a few decades ago. Now there are thousands of homes. The flood danger is obvious.
And, thousands of new homes are projected for a dozen or more major developments being proposed for additional tidelands and other low-lying locations around the bay:
"At least 12 major developments with as many as 56,000 new homes are planned at the edge of the Bay over the next 5 to 20 years…many are in low-lying areas experts say are potentially vulnerable to flooding associated with long-term sea level rise. Some cities and counties have strategies to deal with that problem, others do not."
But what is different today from developments built, say, three or more decades ago is that many of these new developments will be built as community associations and much of the expensive engineered facilities necessary to protect these developments from storms, rising tides and sea levels will not be owned by cities or the state, but instead will be the responsibility of homeowners.
Streets, storm sewers, parks, parking lots, and sidewalks in old developments are owned and maintained by cities and counties using tax dollars raised from a much broader tax base. In newer projects these "public" works are instead made the responsibility of private owner's associations. The advent of the community association was a boon to tax-starved local governments who saw them as a way to promote development and raise new tax dollars while avoiding liability for these new facilities.
Berding|Weil Q&A of the Day
By Tyler P. Berding, Esq.
My association is built on bay fill. We've noticed that some of the buildings are beginning to show cracks in the stucco that don't seem normal. Is this a problem?
It could be, depending upon the type of cracks. All stucco cracks to some extent, but if the cracks appear wider than the typical "spider vein" cracks, are more diagonal than horizontal or vertical, and have begun to show up more than a year after the project was built, it may be due to subsidence in the fill or another related foundation issue. If the cracking is showing up in more than one place on the building, or on more than one building, you should have a soils engineer take a look at them. Also, if you have encountered sticking doors, or windows that don't open and close correctly, that may be another indication of fill subsidence.
In California how much time does our community association have to bring a claim for foundation settlement damages?
The outside time limit is ten years, but that period could start as early as the sale of the first unit in the project. Have your attorney check your governing documents to determine the trigger date for these limitation periods. Beyond that there are shorter limitations, usually dating from the time the problem is discovered--usually three years for property damage, but could be as short as two years. Again, check with your attorney as soon as you suspect a problem.

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