A ‘sinking’ situation
By: GARY P. KLINGER Review Correspondent, Staff Writer
Ephrata Township Supervisors continue to be flooded with questions about the storm water management system at the Charity Gardens Development.
For the second time in the past several months, representatives from the development’s homeowners association were present at a board of supervisors meeting seeking any help from the township in compelling the developer, Gene Martin, to give the association $50,000 to be held in a fund especially established for the maintenance and repair of the flood basin.
At the crux of the matter is a controversy over what Martin did or did not already contribute to the fund and what obligation, if any, the township has in resolving the conflict. Residents contend Martin never met the obligation. Township officials hold the point of view that their requirement of Martin establishing the fund was above the call of duty but not something they can enforce.
Through a letter from his attorney, Martin claims the obligation was already met and that he had already paid to make certain repairs to the system prior to the point at which he and his family turned control of the homeowners association over to property owner. Yet, per the requests from the township, he has yet to supply any documentation to support either his contribution or his repair work. Neither Martin nor his representatives have been at any of the township meetings to offer any further information.
Township manager Steve Sawyer briefed supervisors on the situation.
"The reserve fund was required (of Martin) as a condition of our approval to change the basin from a synthetic to clay liner," said Sawyer. "We sent another letter to the developer for additional information on the cost of repairs, his records, minutes between the homeowners association, etc."
According Sawyer, township officials did receive a response from Martin’s lawyer Jan. 9 saying they were not going to provide additional information. The letter also provided information on sink hole repairs but not any information on where those repairs were made.
Documents provided by the Charity Gardens Homeowners Association include a letter dated Dec. 27, 2005 from developer E & L Martin Family Partnership and Gene Martin, which establishes the reserve account for "future repairs and replacements of the permanent storm water management facilities."
Further, the letter states that the developer was promising the reserve account to be in the amount of $50,000 as of the date three years from the date the last lot within the development was sold. The letter stated that developer and homeowners association would share the cost of repair of sinkholes within the permanent storm water management basin from the date of the letter until three years following the sale of the last property.
Homeowners contend the $50,000 was never put into a reserve fund as promised.
The homeowners are looking to the township to help enforce the agreement. But to make matters worse, the township may have little remedy to compel Martin to abide by his commitment. The township invited both Martin and the homeowners to attend the Feb. 5 supervisors meeting in hopes of resolving the matter. The homeowners were in attendance, however Martin was not.
Charles Sheidy is the township’s solicitor. He questioned supervisors on their will to resolve this.
"Do we need to spend township money to enforce this?" asked Sheidy. According to Sheidy, there was no reason the township would legally need to do anything, although it could if supervisors deemed it necessary. He also pointed out that Charity Gardens is partially located in both Ephrata and Clay townships.
In Sheidy’s opinion, the residents of the development could try to enforce it on their own, but warned it was unclear what the courts would or would not do. Further, he suggested that even a win in court might prove of little value in actually collecting funds from Martin.
"Even if you spent the money and got a judgment stating the Martin family partnership owes this money, you still have to collect it," stated Sheidy. "You would need some judgment against some property they own free and clear and take it to constable or sheriff’s sale."
Sheidy said he was unsure of what assets the Martins had or whether there was money there to be collected. He estimated the cost of fighting this in court could be upwards of $13,000, which would have to be collected up front.
"Technically, I think they are correct that (the Martins) did not do this, but whether you want to enforce this on your own is up to you," said Sheidy.
Connell O’Brien is the president of the Charity Gardens Unit Owners Association.
"I would reiterate that we provided compelling documentation, data and records showing that the agreement has not been fulfilled," said O’Brien addressing the supervisors. "It is a mixed legal opinion if we would be third party or if the township would fail to uphold the agreement whether or not the attorneys would name everyone … developer, township etc. That’s not in our interest. What we are really looking to do is ask the township as the entity that approved the development plan who deals with developers all the time to demonstrate that it acts on behalf of the residents of the township, that it does what it says in this agreement."
The supervisors were sympathetic with the plight of the homeowners but struggled to find the grounds on which to enter the fray.
"I’ve looked at this over and over and over in my mind," said Supervisor Tyler Zerbe. "I’m just not sure legally by law what we can and cannot do. We must go by what the law says, what the developer puts on the deed and what gets recorded down the line."
Zerbe also echoed Sheidy’s concern about the use of township funds to help fight this.
"I’m not sure how you ask the other 9,700 township residents who pay taxes to file suit against this person and spend $10-13,000 so that the homeowners association gets the amount they feel is due to them," commented Zerbe. "I think you have a good chance of taking the man to court on your own. I just don’t see how the township can do so."
Supervisor John Weber was likewise sympathetic.
"I think we should continue to put some pressure on Martin," said Weber. "I would be willing to suggest the board contact him one more time to honor his commitment. I feel we owe that to the association."
Chairman of the supervisors, Clark Stauffer expressed doubts that the additional pressure would lead to a successful outcome.
"I think his response will be the same as before," said Stauffer. "Do I feel he met his obligation? No! He says he put some money in. We asked for documentation and he gave us none to show his expenses."
Stauffer pointed out that three-quarters, if not more, of the Charity Gardens development is located within Clay Township.
"You want our residents to pay to fight this, three-quarters of which are not even our residents, which is not fair. We are saying that the only thing to do is for the homeowners association to take him to court, but it is not in the best interest of the residents of this township to take him to court."
Stauffer did, however, agree with Weber that perhaps the township could continue to work toward a resolution outside the courts. He agreed to personally attempt to contact Martin and reason with him to abide by his commitments.
For additional information on Ephrata Township, visit ephratatownship.org. Contact Gary P. Klinger with feedback or questions via e-mail at email@example.com. More TOWNSHIP, page A6
Posted: February 27th, 2013 under News.