WALLINGFORD — Earlier this month, a large tree fell from a wooded area and damaged a playscape in the backyard of Patty and David Kaplan’s Whiffle Tree Road home.
While there were no injuries —the couple’s three young children were not in the backyard at the time — the incident raises questions about homeowners’ associations and liability.
Neighborhood children often play in the wooden open space area behind Whiffle Tree Road, Patty Kaplan said.
“Someone can get hurt. What happens if there was a serious accident? Who’s liable?”
The couple’s home, at 9 Whiffle Tree Road, is surrounded by wooded wetlands.
“My concern isn’t the tree that fell, it’s the bigger ones behind it,” David Kaplan said.
The tree fell without warning on the evening of Sunday, Aug. 17. During the following week, the Kaplans contacted several town departments seeking help.
They are asking that the town help remove the tree that fell and inspect other trees in the area that could potentially fall onto their home.
“I would think the town has liability,” David Kaplan said.
Last week, Public Works Director Henry McCully informed the couple that they are part of the West Farms Homeowners’ Association.
The property from which the tree fell is owned by the association, not the town. Homes on Whiffle Tree Road, Harnish Lane and Cornelia Drive are part of the association, which according to state records was established in 1993 and remains active today.
When they purchased their home in 2001, “we didn’t know there was an association in place,” Patty Kaplan said, adding that they have never been asked to pay dues. A prerequisite in looking for a home at the time was that “we didn’t buy into an association,” she said.
Bob Regan, a local attorney, is listed by the state as the association’s agent. Regan said Monday he is no longer involved with the association and was surprised to see he is still listed as its agent. When the subdivision was first under development over two decades ago, Regan said, he established the association for the land developer. He signed his name “for starting purposes” but expected the association to be handed off. This is a common practice, he said.
“In general terms, the land they want to develop has portions that are not able to be developed due to wetlands or terrain,” he said.
Undeveloped land becomes open space. A large piece of wooded, open space sits behind homes between Whiffle Tree Road, Parker Farms Road and Brookview Avenue. In having open space, there is liability, Regan said.
“The town does not want to control that area for just this type of reason,” he said. “They let the homeowners be under control, and they insure and maintain it. So the town doesn’t have any responsibility at all.”
David Kaplan said he hoped to handle the issue amicably, but is considering legal action against the town.
“I think the town should step up” to remove the fallen tree and ensure other trees in the area aren’t in danger of falling, he said.
When moving into their home, he said, the couple was never told they would be liable for the wooded area behind their backyard.
Defunct associations are common statewide, Town Assessor Shelby Jackson said. Subdivisions are approved, and the developer or some other entity is supposed to form a corporation that collects dues and manages the properties, he said, but “a lot are not doing this.”
The tree falling onto the Kaplans’ property presents an “interesting dilemma,” Jackson said. “I was curious when something like this would come up.”
The issue that usually surfaces with neighborhood associations and open space parcels is the “failure to pay taxes,” Mayor William W. Dickinson Jr. said. “It’s supposed to be the homeowners’ association.”
Regarding incidents that happen on property owned by a homeowners’ association, “I see no reason why it’s automatically a liability of the town,” he said.
Town records show that the West Farms Homeowners’ Association doesn’t owe or pay any taxes. The association has a listed address of 60 Church St., an office building in Yalesville. The landlord at the address referred questions to Gene Fontanella, a realtor who once had an office at the address. Fontanella confirmed Monday that he started the association with Regan as his attorney, but sold off any interest in the association when another developer, Luigi Delbouno & Son, of Meriden, took over and completed development of the subdivision. Delbouno could not be reached for comment.
When Fontanella left the project, some lots in the subdivision had yet to be sold. “I don’t know if bylaws were ever implemented,” he said of the association, because all 56 lots in the subdivision had to be filled first.
Since he started working in town in 1999, defunct associations have presented an issue, Jackson said. Without a working association, tax bills on open space property pile up resulting in tax liens, he said.
During the 2005 revaluation process, Jackson said, his office developed a new method to “correct an error from the past.”
Open space in a subdivision isn’t taxed, something that can be “difficult to understand,” Jackson said.
Instead of placing a taxable value on open space owned by a defunct association, taxes on the open space property are rolled into local property taxes paid by members of the association, Jackson said.
Other towns place an arbitrary value on open space so that property owners can be taxed, he said.
“That’s clearly incorrect in my view.”
Jackson takes into account the open space parcel in an association as he would a pool at a condo complex.
The value of a home increases due to the proximity of open space, therefore property taxes increase.
In return, property owners have access to undeveloped land that can often include trails and other amenities, and the town receives tax revenue, he said.
“Each house has an equal undivided interest in those parcels,” Jackson said.
“It’s the same for every homeowner.”