The construction of private, gated communities within Central Florida has occurred at an aggressive pace during most of the last decade. Over 200 private communities are now in place just within unincorporated Orange County. Many of other Central Florida municipalities have likewise seen a significant increase in these communities, and the lifestyles they may offer.
With the relatively recent expansion of the communities, along have come more rules upon their operating responsibilities, and more issues to be managed. The Professional Community Manager's role has become more complex, as has the Home Owner Association's (HOA's) duties. The Professional Community Manager as well as HOA Board members deal not only with the challenges facing those communities built with public streets, but also with the challenges of maintaining a safe, operational infrastructure within these private communities. This infrastructure not only includes streets, sidewalks, and the stormwater collection/ pond system, but also upon all common tracts and the wetlands or improvements thereon. These tracts, as well as some easement areas, could include parks, community buildings, docks & ramps, walls, gates-etc. Thusly, proper maintenance and management of this common property warrants enlightment upon the issues specific to these communities.
This document addresses infrastructure maintenance and management upon gated communities with private roadways. These communities were typically created by a developer or developer/builder, in accommodation of certain lifestyle benefits enjoyed by those who live in these communities; but the residents via the HOA, are - or will become - accountable for the continued maintenance, funding, and capital expenditures that go along with private-community living.
Therefore, this document has been prepared to assist Community Association Management Professionals and Homeowner Boards in their endeavors to maintain their HOA infrastructures adequately and in compliance with pertinent rules and permits that so govern these gated communities.
The City or County jurisdiction in which the community is located, likely has ordinances that were enacted so as to help assure continued viability of the roadways and other infrastructure within these private communities. Inclusive with this responsibility, would be the preservation of public safety. Inclusive within some governing ordinances, are requirements for periodic written engineering evaluations, funding, traffic control, and other responsibilities that are publicly provided upon non-gated, subdivisions with public streets.
State Water Management District
The developer of a community in Central Florida had to receive a permit for the infrastructure construction from South Florida Water Management District (SFWMD), St. Johns River Water Management District (SJRWMD) or the Southwest Florida Water Management District (SWFWMD). Each of these permits would need to be transferred into a management phase permit, upon construction completion. Additionally, this management-phase permit is to be transferred to the HOA.
The WMD permits come with Conditions of Approval. Often, there are on-going responsibilities that are outlined via these Conditions. The responsibilities that befall the HOA may well include wetland habitat monitoring and maintenance; aquatic plat preservation; periodic engineer inspections; and so forth.
Declaration of CC & R's
The governance by and under the HOA "Declaration" of Rules and Covenants is generally well known. What too often is not known, are some of the rules that are specific to Private Communities. And, these HOA requirements are often backed up by local ordinance, necessitating the institution and management of a maintenance and capital repair program to achieve compliance.
Utilities NOT Included in HOA Responsibilities
The potable and reuse water, as well as the sanitary sewer systems, are rarely under control by the HOA. These utilities are provided by a utility company, either municipally-owned, or private. Cable TV and Power, and sometimes natural gas, are provided through systems that are located in utility easements alongside of the Right-of-Ways, or via other specific easement. Easements are so granted, usually, through the recorded plat. These utilities and the maintenance upon them, are not the HOA responsibility (unless an agreement exists otherwise, such as with a cable network supplier).
TYPICAL INFRASTRUCTURE RESPONSIBILITIES
The HOA upon gated communities is usually responsible for the funding, maintenance and provision of needed capital improvements, upon:
Streets and Curbs including traffic signage and striping
Sidewalks & ramps
Offsite sidewalk within HOA property
Drainage collection system
Retention Ponds including littoral plantings
Wetlands tracts and any associated mitigation plantings
Entrance gates & operators
Buffer walls & entry monuments
Common-area landscaping & irrigation
Clubhouse & common-area buildings
Park Tracts & Park Amenities
Of the above referenced improvements, the preservation of the Streets, Stormwater System and Ponds, and Sidewalks is the chief focus of the local codes requiring infrastructure inspections and repairs.
A private, gated community is subject to the Conditions of approval within the entitlements and permits under which was developed.
These may include the following:
City/County Conditions of Approval/Certificate of Completion
These documents contain information relevant to the construction of the roadway and stormwater collection systems, as well as potential obligations that will pass on to the HOA, in regard to maintenance upon the infrastructure.
Local Ordinance Requirements upon Gated Communities
These are available via the web.
Water Management District Permit and Conditions
This important document often has Conditions of Approval that obligate the HOA.
Final Recorded Plat(s)
The Recorded Final Plat is the document that creates the subdivision of the property into the community as laid out. The Plat creates the lots, tracts, Rights-of-Way (public & private), & easements that were both necessitated as per the engineered plans, or requested by power and utility companies. This is a very import, controlling document. The Right-of-Ways will be invariably be subject to public-access easement or use for such items as mail, law-enforcement, utility company providers, etc.
Additionally, the Plat often places maintenance criteria or other qualifications upon some of the tracts unto the HOA.
Right-of-Way Use Agreement (if applicable)
Orange County requires this for the placement and upkeep of any private utility/fixture/wall etc, upon PUBLIC ROW.
Easement documents upon common property.
There may be easements and accompanying agreements that were placed upon portions of tracts or even lots, after the plat recording. These typically would be to power, gas, or other utility supply companies.
Traffic Law Enforcement Agreement
Orange County ( for one) code calls for this, between the HOA and the County, executed by the board of county commissioners.
Street Lighting Agreement
The street lighting may be accommodated by either a lease, or through funding by the creation of a Municipal Service Taxing Unit (MSTU) tax, wherein the municipality collects special taxes upon the community residents for a specific use.
TURNOVER OF CONTROL OF INFRASTRUCTURE
The big day comes when the Developer turns over the control of the HOA to the residents. Hopefully, this will be after:
1. The previous preparation of an Infrastructure Inspection Report by a Civil Engineer,
2. and remedial construction by the Developer.
3. Confirmation by an Engineer or Municipal Engineering Inspector, as to compliance.
4. IF wetlands are upon common tracts, a compliance letter by the Project Environmental Consultant.
To facilitate sufficient subdivision management of the Infrastructure (just one of the tasks administered by a Professional Community Manager), the following documents should be secured and copied on behalf of the HOA:
1. Engineer's Letters of Completion (to City/County and WMD)
2. Municipality's Certificate of Completion
3. Complete set of 'as-built' Construction/Engineering Plans
4. Recorded Plat
5. The WMD Permit, INCLUDING a document evidencing the transfer of the permit to the HOA
6. FEMA-LOMR Certification(s), if needed to remove lots from the flood plain (FEMA: Some communities were placed upon lands that have been identified by the Federal Emergency Management Agency (FEMA) upon their Flood Insurance Rate Maps (FIRM) as being subject to flooding - that portions of the property lay within delineated Special Flood Hazard Areas (SFHA). These SFHA are areas which are subject to inundation by a flood that has a 1-percent or greater chance of being equaled or exceeded during any given year……this is known as the 100-year flood plain. The design engineer would have taken this issue into account, in the approved design for the community. All single-family lots would have been removed ( through placement of fill), at least within the buildable areas, from this Flood Plain- physically, anyway.
The engineer may have been paid to follow-up with post-construction certifications and the processing of this change upon the FIRM delineation through FEMA, for these lots to be removed from being identified as within the SFHA/flood plain, through a Letter of Map Revision (LOMR) process. Should this not have been so certified, the lot owners upon those lots will be burdened with acquiring flood insurance- even though they are now above the flood plain.)
7. Copy of Right of Way Use Agreement, if there is one
8. Any other permit with operational requirements that would transfer to the HOA, such as Orange County Environmental Protection Department
9. Traffic Enforcement Agreement, if applicable
10. Contracts for ongoing services by any vendors, such as for:
gate operation and maintenance
landscaping & irrigation
irrigation well service
environmental consultants in regard to mitigation/management of pond aquatics or wetlands
Additional benefit would be had, from a listing of the various vendors involved in the construction of the community's specialty paving, sport courts, landscape lighting, etc.
The foregoing is meant to be a guide in the listing of documents that are needed in regard to the infrastructure management; there are other issues and documents that will be needed and can be identified by or secured by a Professional Community Manager or the HOA Board (such as funding and escrow status/needs, CC&R's, Articles of Incorporation of the HOA, by-laws, INSURANCE, etc.)
MANAGING THE INFRASTRUCTURE
Fiscal accounts needed for Infrastructure Maintenance & Repair:
The HOA Board and/or the Community Management Company should be familiar with the requirements for infrastructure maintenance and capital-improvement funding.
As an example, the requirements in unincorporated Orange County, through the "Gated Community" ordinance (Orange County Code Chapter 34 Article 8 Sec. 34-291)- required is the establishment of the following accounts:
1. Routine-infrastructure maintenance Account
2. Capital-repair/streets account
3. Capital-repair/drainage pond account
4. Capital-repair/other infrastructure account
Specific information is contained within Orange County Code, in identification of the requirements thereon.
Attention is also called to the fact that these accounts do not accommodate Capital Repairs of numerous amenities such as gates, walls, buildings, etc!
The HOA is responsible for the provision of public safety, upon the community's streets and sidewalks. A self-enacted and applied program for the assessment of current conditions, on a periodic basis, is warranted.
Traffic control sufficiency, adequate street lighting, pavement pothole repair, trip hazard identifications and repair, minimization of open access to steep or eroded areas, emergency provision accommodations upon gated entries, replacement of missing or broken pavement markers in identification of nearby fire hydrants, adequate sign postings as warranted (such as No Trespass or No Swimming), protection from unauthorized swimming pool access, & street-tree-limb management are a few of the issues that bear out periodic scrutiny in these risk assessments.
The placement of a sidewalk in HOA-owned tracts, without an overlying public sidewalk easement, likely increases exposure to the HOA from tripping accident suits. Are easements in place, as should be?
Community Management Professions are trained in Risk Management; others should keep a vigilant eye cast upon these and other items of possible consequence; and reparations then need to be completed, to a pragmatic degree.
ROUTINE & PERIODIC MAINTENANCE
The infrastructure should be periodically reviewed for maintenance needs, on a routine basis. The time-period for the scheduling of this is dependant upon the current level of maintenance, as well as the standard of construction in the first place. Generally, a specific focus on this topic once every 3 months should be sufficient, with emergencies and significant failures being the exception.
With a scheduled quarterly review, risks are minimized, and problems are often curtailed before they 'mushroom' into further problems. Potholes grow, erosion continues, pipes get clogged, etc. The HOA Board agenda inclusion of this as a topic for discussion "forces" this 'look-see'; and, as a quarterly item, the confirmation of the prior quarter's remedial construction can serve as a 'fail-safe'.
Certain community maintenance work is likely accommodated with an on-going contract, such as mowing. The Professional Community Manager or responsible HOA Board member should communicate with the contractors, for them to be aware and be on the lookout for problems that shouldn't be- and then to report of them.
Once problems are assessed, repair and adequate follow-up maintenance are in order.
A private community should then also engage a Florida-registered engineer "experienced in subdivision construction" to provide an 'overall' formal inspection and report, perhaps every three years. The timing of these formal investigations may well be driven by local ordinance, Condition of Approval, or by the community covenants. The restoration of defects as identified by the engineer will help assure safe use & functionality of the infrastructure, and is likely required anyway.
ENGINEER'S INSPECTION AND REPORT
Some municipalities are specific as to when and what are to be inspected within the gated community; such need for inspections may be included within Conditions of Approval upon some governing permits. Usually, the community's recorded Declaration of Conditions, Covenants and Restrictions (CC & R's) will also include requirements for these infrastructure inspections.
The Infrastructure Inspection Report will need to invariably include the streets and the drainage system. The street systems include the improvements that are normally public within the Right-of-ways: roads, curbs, sidewalks, signage, and striping. The drainage system is comprised of the inlets, piping and ponds. These items are the primary items of concern within local codes. The permits for the infrastructure construction and operation and possibly the conditions thereto are usually oriented to criteria as relates the stormwater management/pond systems, as well as perhaps upon mitigation plantings upon environmental tracts.
Improvements, as referenced above, are items that need to be inspected by a Civil Engineer, except that aquatic/wetland issues are best reviewed by a qualified Environmental Consultant.
The engineer might also make public-safety observations and other comments upon other components of the private infrastructure, but usually much of this remainder infrastructure (other than referenced above) is outside of a Civil Engineer's field of expertise. These 'extraneous' amenities, except street lighting, are not of themselves critical to access or general 'public' safety; and, they are best maintained by professionals in the respective fields (pool contractors, landscape & irrigation companies, etc.).
The HOA and/or the Management Professional should request assistance from a Civil Engineer or other qualified professional, as to budgeting for routine infrastructure maintenance costs over the following several years; the codes/ ordinance in some municipalities are specific upon this criteria, requiring these cost estimates to be prepared by the Engineer that conducts the infrastructure investigation, with the report. Additionally, this professional would be able to assist on needed updates or revisits to the HOA's capital-repair accounts.
Recommended Scope of Services
Central Florida Land Design Corporation's (Professional Engineers) recommended Scope of Services that would be applicable to the private community's need, and within the Civil Engineer's expertise, would be the following:
1. Stormwater Drainage Inlets:
Engineer shall perform visual inspection of all storm inlets for determination of evident defects, consequential blockage, and excess infiltration (above seasonal high ground water table) and/or siltation. Engineer shall probe structure bottoms as feasible, including removal of storm manhole covers as necessary and feasible, to inspect bottom of structure for excess sediment deposits.
2. Stormwater Ponds and Outfall Control Structures:
Engineer shall check all retention/detention pond control structures and other stormwater system components (weirs, skimmers, yard drains, grates, spreader swales, etc.) for proper function. Engineer will inspect lakes, retention ponds, and/or conservation area for general determination of functionality, erosion and maintenance needs.
3. Pavement Visual Observations and Report:
Engineer shall visually inspect the wearing surface of all roads, and identify deficiencies as observed. Any sub-strata or technically involved issues as foreseen by Engineer, will be related, for HOA/Management Company employ of a Geotechnical Engineer or other qualified entity.
4. Sidewalk Inspection:
Engineer shall inspect sidewalks for consequential defects and trip hazards, and so identify.
5. Curb Inspection:
Engineer shall check curb for excessive cracking that impairs structural integrity, and identify deficiencies.
6. Signage and Pavement Markers:
Engineer shall verify adequacy of the maintenance upon traffic-control signage and pavement markings as are placed at intersections and throughout the subdivision.
7. Entrance Walls and Perimeter Fencing:
Engineer shall visually inspect entrance walls and roadside and subdivision buffer walls in observation of any defects, such as settling, cracks, missing features, etc.
8. HOA Common-area Amenities- Pools, Buildings, and structures
Engineer is not qualified to make remediation recommendations upon buildings, pools, etc; however, Engineer shall make casual observations upon such amenities, as regards evident omissions or needs.
9. Routine-infrastructure-maintenance Escrow account
Engineer shall, using good engineering practice in accord with standards as Engineer deems appropriate, make recommendations and estimates for the funding needed each year for the following three years for the funding of the routine-infrastructure maintenance account for maintenance and repair of the streets, sidewalks, and drainage system, inclusive of stormwater retention/detention areas.
10. Report Preparation:
Engineer shall prepare Report of Findings. The Report shall identify observed deficiencies; further, Engineer shall make and generally detail Recommendations upon remedial work that should be undertaken due to current deficiencies as observed and noted.
GEOTECHNICAL AND ENVIRONMENTAL CONSULTANTS
Specialty Consultants, such as a Geotechnical Engineer or an Environmental Consultant, may need to be retained-depending upon the issues. A seasoned Civil Engineer charged with performing an Infrastructure Inspection, may be able to address the concerns at hand - or, make known of the needed enlistment.
A civil engineer might observe defects with the roadways, ponds, or berms; should any of these involve further investigative work, the Civil Engineer may see fit to recommend the employ of a Geotechnical Engineer, or direct 'discovery' work otherwise- such as localized excavation.
Should the Civil Engineer have concerns as to aquatic vegetation - or the lack of it - he/she may be able to conclude upon the remedial work needed, or make known as to the need for an additional consultant (such as Environmental Consultant).
Therefore, the enlistments of specialty consultants should follow the investigative report by the Civil Engineer. In this manner, specific focus of their involvement will be made, if they are needed at all.
VENDORS AND CONTRACTORS
The Civil Engineer should be able to make recommendations as to the enlistment of a qualified contractor for infrastructure repairs to roads, sidewalks, curbs, and stormwater system components, as may be detailed in the Infrastructure Inspection Report.
The vendors that are associated with the landscape and irrigation maintenance should be able to make 'Management' aware of any repair or replacement needs upon the landscaping and irrigation system, and provide the needed remediation. The vendor supplying service to the gates and operators are the 'consultant' in this regard, typically. Such is the typical, with other 'extraneous' community amenities.
INFRASTRUCTURE IS AN INVESTMENT
Just as with their home, a resident within a gated, private community is an owner of a piece of the subdivision infrastructure. Managed maintenance upon the roads and stormwater management systems is essential to maintenance of public safety, economic management, and compliance with local and state requirements - as well as the enjoyment of community. And, while an intermittently-provided Engineer's Report in identification of shortcomings can be enlightening and timely, it is even more important - at the time of turnover of the HOA control. In this fashion, little and perhaps not-so-little issues can be assessed and addressed (most likely at the developer's cost), and the homeowner's investment can start off on a sound structure!
Take care of the community infrastructure, and it will be a better place to live!