DH POA, developer at odds over timber cuts
Diamondhead property owners and the Colorado developer that owns more than 1,600 lots in the gated community are at odds over tree cutting the latter began last year.
According to court documents, the property owners association claims the activity is more consistent with a logging operation than site preparations for home building. The POA filed a request last month in Garland County Circuit Court to enjoin Omni Home Builders from any further tree cutting and for a court order requiring it to remove logging debris the POA said is a fire hazard and an eyesore.
The counterclaim the POA filed last month in response to the lawsuit Omni brought against the association in February said the cutting and resulting debris give parts of the more than 650home community the look of a “post-apocalyptic wasteland,” not the “idyllic forest” Omni markets to prospective buyers.
The counterclaim asserts the cutting activity violates the community’s governing documents, including provisions prohibiting activities that become an annoyance to the neighborhood and requiring property owners to keep their lots neat and tidy.
“The POA has tried to provide the developer with the benefit of the doubt that there is going to be construction of homes on those sites, but the longer it goes on with no construction, the more it looks like a commercial logging operation as opposed to a residential development, and that’s a concern,” attorney Paul Lynch, one of the lawyers representing the POA, said Friday. “And that’s the concern being voiced to the POA by the residents.”
The POA’s pleadings include a sworn state
ment from a property owner who said Lake Hamilton Fire Department Chief Doug Davey toured lots where Omni left vegetative debris. Davey said Monday that such debris poses an increasing fire risk as it dries out but noted the department doesn’t have the authority to make Omni remove it.
Diamondhead is inside the volunteer fire department’s service area. Davey said the department has a substation just outside the gate.
“We can’t force a company to clean up property,” he said. “That’s not what we do. I haven’t talked to Omni about this particular instance. If I did it would just be suggestions. I can’t make them clean it up.”
Omni said in its pleadings that the POA and “hypersensitive” landowners interfering with its development attempts have caused debris to be left on the lots, explaining that timber harvesting benefits the community and has been done in accordance with Arkansas Forestry Commission guidelines.
James Rankin, the attorney representing Omni, could not be reached for comment.
“The POA is attempting to stop the timber harvest with unsubstantiated claims that the harvest byproduct will spontaneously combust into fires that will ravage Diamondhead,” Omni argued in court documents. It claimed the POA is standing in the way of progress and interfering with Omni’s attempts to sell lots.
The suit Omni filed in February asked the court to declare the developer as a POA member in good standing and alleged the association breached its duties and obligations by failing to recognize Omni’s membership. According to the association’s counterclaim, Omni proposed five of the nine seats on the POA’s board of directors being reserved for it, and that it controls the board until 90% of its lots are sold.
The association argued developer control of the board runs counter to the more than
40-year expectation that management and control be vested in resident members and their democratically elected leaders. A court order requiring the original developer, who started the community in 1969, to turn over control of the POA to resident members in 1978 established the expectation, the POA said in its pleadings, arguing that Omni has breached the POA’s 2008 agreement with the company that sold more than 1,300 lots to Omni for $2.4 million in July
2018.
The POA has argued the agreement requires the developer’s lots be incrementally converted to dues-paying lots. The failure to pay those dues, along with alleged violations of the community’s governing documents, are the basis of the POA’s request for a judgment declaring Omni isn’t a POA member in good standing. That lack of standing prevents the developer from asserting control over the board of directors, the POA argued.
The association is also seeking a judgment for $885,625 in dues from Omni, an amount representing total annual dues for all of Omni’s lots. In the alternative, it has asked for a $74,120 judgment, the amount it said was due last April on the initial percentage of lots the 2008 agreement required be converted to dues-paying lots, and $148,240, the amount it said is due on the subsequent percentage of lots the POA said is subject to annual dues.