September, 2000 HURRICANE PREPAREDNESS, PART II: WATER CONTROL STRUCTURES The season has just begun! August =s brush with Alittle@ Debby brought home the need for adequate advance preparation. Last year hurricane Irene taught communities a valuable lesson. Most communities are responsible for water control within their borders. While the South Florida Water Management District and the local Drainage Districts generally are responsible for maintaining water flow in connecting canals, generally each community must take steps to regulate its own water within the dictates of its water management permits.In June the firm =s Memorandum to Clients provided useful general organization preparation suggestions. This article reviews a related topic: storm drainage. The first step that most communities must undertake is to determine which state agencies regulate their location. Most of Florida, south of a line stretching roughly from Fort Myers to Orlando to Melbourne, is within the South Florida Water Management District, one of the five Florida Water Management Districts (www.sfwmd.gov). Water Management Districts are divided into ADrainage Districts@.Recently Drainage Districts have provided advisories for communities seeking to take protective efforts before a storm. One of the largest Drainage Districts, geographically, in the southeast Florida area is the Lake Worth Drainage District ( ALWDD@). Many South Palm Beach County communities are regulated by the LWDD. The LWDD has requested community associations with adjustable water control structures, including weirs, to provide the LWDD a list of authorized persons for whom permission is sought to adjust the structures. The LWDD has established an emergency telephone number (561) 495-4054, operational during hurricane season when a tropical storm or hurricane threatens.LWDD advises that personnel will answer the telephones to provide information and when necessary will provide instructions to authorized personnel for adjusting water control structures. In this regard, the LWDD has initiated AProcedures for Control Structure Openings@ as follows:=s agreement with the South Florida Water Management District, the LWDD can authorize a homeowners association to lower a weir gate. 3. Authorization - An individual on the Association =s list must call the District. The emergency phone number is (561) 495-4054, after hours, contact Palm Beach County Emergency Operations Center at (561) 712-6400.
It is important to know that if these guidelines are not followed or abused, the LWDD has the authority to disable the adjustable portion of the weir gate. It is imperative that associations contact their local Drainage Districts to confirm proper authorization and procedures. Appointment of proper authorized contacts is just as important as the proper appointment of officers. The responsibility for opening and closing weir gates is serious. Among appointment criteria will be physical capability, reliability, availability and rationale decision making under pressure. Last year many authorized persons reported being improperly pressured to open gates when prohibited by the district. Associations should confirm with their insurance agents that there is adequate coverage for the association, officers, directors and volunteers. Take these steps now while there is planning time. ATAXPAYER=S@ LAWSUITThe Florida Department of Revenue issued a press release regarding Aqui tam@ litigation. These claims, filed by individuals, not the State, are targeting associations. It is alleged that the associations should have paid the State documentary stamp tax on the value of all mortgages encumbering foreclosed property, not just the tax on the amount of the high bid. The suits seek penalties as well as the claimed taxes. The Department announced an amnesty program allowing taxpayers to pay additional taxes. In a related matter, The Florida Bar=s Condominium and Planned Development Committee is assisting associations around the State responding to the claims. The actual method of calculating the tax has not changed from time immemorial, and was not challenged by the State. It is noted that the documentary stamp tax payment challenged by the suit generally is calculated by the Clerk=s office. Also, a purchaser at a sale generally cannot determine the balance of individually held mortgages on property. If your community receives a notice, or has purchased property at a foreclosure sale, then contact counsel for assistance. OFFICE NOTES The firm is proud to announce significant milestones. The Nelle Smith Home for Girls, a not-for-profit charitable organization operating a family style environment to protect teenage girls, announced the appointment of Mary C. Arpe as President. Mary is a long standing volunteer with the organization assisting its efforts to rebuild. In addition, the United Way of Palm Beach County announced Ms. Arpe=s appointment as a Director. If interested in United Way=s projects, then call the organization at (561) 375-6600. The University of Miami has announced that Michael J. Gelfand will be speaking at the University=s 25th Institute on Condominium and Cluster Developments. He will be the lead-off speaker for the two day event occurring on October 26th - 27th, 2000. Professionals, including attorneys, accountants and managers, desiring attendance for education credits should contact the University directly at (305)284-6276, or www.law.miami.edu. The firm is not able to provide tickets or reservations for the Institute. This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected. 8 2000 by Gelfand & Arpe, P.A. F:\WP51\CLIENTLT\UPDATE00.09.wpd |