Homeowners forced to navigate streets riddled with potholes that could swallow small cars and bridges school bus drivers won’t cross have turned to the courts as a last ditch effort for relief.
The Hilldale South Homeowners Association has filed a lawsuit against the Muskogee County Council of Commissioners and Tri-City Development, asking the court to declare the roads in the subdivision to be public streets. They are also seeking an ordinance fulfilling the county’s obligation to maintain these public streets in the subdivision.
HOA President Bruce Field said the frustrations he and other owners experience continue to mount as their roads deteriorate and their concerns are cast aside.
“We’re kind of stuck with the fact that they’re literally taking their time and pushing this as far as they can,” Field said after the commissioners decided to hire a private law firm to defend the board of directors. “They are literally doing everything in their power to push it back, and… if the court rules in our favor, they can appeal… it could take another two years.”
Commissioners argue they do not have the legal authority to maintain these roads because the county has never adopted the streets of Hilldale South. The developer of the subdivision, they say, is one of several who did not go through the road opening process.
Commissioners record when dishes are dropped that the county is not responsible for building, maintaining or repairing a street in a subdivision. They always include a statement to this effect in the meeting minutes and an audio recording is kept for future reference.
District 1 Commissioner Ken Doke said the commissioners “did a pretty good job” setting this record by briefing developers on the road’s groundbreaking process. He and other commissioners said the process, officially adopted in fall 2019, must be followed before adding new roads to the county’s inventory.
John Tyler Hammons, who represents the homeowners association, alleges that there was no formal policy in place when the developers filed a subdivision dish in 2007 and filed a flat a decade later. Hammons, in a motion seeking summary judgment, argues that the filing and acceptance of these documents prior to the adoption by the commissioners of the road allocation policies constitutes a common law allocation of the streets in the subdivision.
Common law commitment, Hammons said, requires two things: “owner’s intention and actual acceptance by or for the public.” Hammons, citing the case law, said the intent “is evident” when a developer files a survey and plaque that “sets apart certain grounds for public use,” and the approval of those documents by them. commissioners constitutes an “acceptance”.
“These two facts clearly satisfy the two elements of dedication,” Hammons says in court documents. “Even though the defendant had not affirmatively approved the flat …, the subsequent sale of the lots in the addition in accordance with the dish and the use of the roads in the addition by the general public caused the roads to turned into public roads by Operation of the Law. “
District 3 commissioner Kenny Payne said in 2019, when commissioners adopted existing policy, there would be no implication that the county will be responsible for roads in a flat subdivision until it there is formal acceptance. He also wanted to clarify that accepting a dish did not require the county to accept the routes included on a dish because it had been accepted.
Hammons argues that because the filing and acceptance of the 2007 and 2017 dishes predate existing policies, Commissioners cannot enforce the policy or avoid common law dedication.
Timothy Miller, a Hilldale South owner whose complaints were among those that prompted Commissioners to adopt existing policy, said the money Commissioners would spend on lawyers defending this lawsuit would be better spent on the roads.
“We tried every avenue – we tried to get a deal with the county and the developer, but they wouldn’t agree,” Miller said. fist in our face. “
Miller said Hammons obtained a default judgment in March after the county failed to file a timely response to a petition filed in January. This judgment was, however, overturned in May.
District Attorney Orvil Loge alleged that the default judgment was handed down due to circumstances he described as “a victim or inevitable misfortune”. Loge says in court documents that an employee of the Muskogee County Clerk’s office accepted service of the petition and summons by certified mail, but did not forward those documents to his office.
District Judge Timothy L. King also determined that there was “an irregularity in obtaining the judgment” which necessitated its overturning. This irregularity, King ruled, was the failure to file a motion or provide notice before default judgment was requested by the plaintiffs.
King will hear arguments on September 10 for and against the owners’ summary judgment motion.