Friday, Jul. 11, 2008

This 'Fence’ Does Not Make for Better Neighbors

By John English

Contributing Writer

It is hard to imagine that a dilapidated brick wall would be at the center of a major controversy in a neighborhood called "Rustic Timbers," but one Flower Mound resident said it could be the difference between life and death.

Gary "Doc" MacDiarmid said a wall on his property, obstructs his view of traffic entering Redwood Crest Lane from Fireside Drive.

MacDiarmid said he and his wife have had a number of near misses with vehicles turning onto the street and pedestrians walking along the sidewalk. He said if something is not done to address the issue, there could be tragic consequences.

"If you just walk out of the garage, much less drive out, it’s hard to see what’s coming around that corner," MacDiarmid said. "These people come around here, and we’ve almost been run into – my wife and myself – four or five different times. A little kid came running around my wall one time, and I almost hit him."

MacDiarmid said, in addition to obstructing his view of the road, the wall is in horrible repair and falling apart.

"One of the bricks fell down and hit me on the shoulder when I was working in the yard," MacDiarmid said. "That’s when I said, 'that’s it.’ We’ve got to do something about this. If somebody is walking down the sidewalk next to the yard, and it goes the other way, who’s going to be held liable?"

MacDiarmid alleges that the landscaping around the wall has not been properly maintained by the homeowners association. He said irrigation systems have been left on for so long at times that it has turned portions of his front yard into a virtual quagmire.

"They’ve sent for the measurement of the wall," MacDiarmid said. "However, I said that the placement of the wall is incorrect. It’s on my property, and I don’t like where it is, because it’s unsafe, and they haven’t maintained it."

Mark Williams, president of the Rustic Timbers Homeowners Association, said the Rustic Timbers HOA has done nothing wrong.

"The wall is exactly where the plat says it should be," Williams said. "The town has told me, in no uncertain terms, that our placement of the wall is exactly where it should be."

Williams acknowledged that the wall is in poor condition and that the situation is being addressed.

"The wall is deteriorating, and we’re replacing it," Williams said. "Part of the issue is, he [MacDiarmid] wants us to move the wall off his property. How do you move the wall off his property? It’s part of an easement there, and basically that easement was granted at the time the property was platted."

Williams said he does not believe the wall is a traffic hazard because traffic is not that busy in the area. And, he said, the driveway is far enough back from Fireside Drive that there should be plenty of clearance.

"The developer built the wall according to the town of Flower Mound’s requirements, and basically, we’re just duplicating exactly what is there," Williams said.

MacDiarmid said he wants the HOA to consider an architectural plan he had drawn for a new wall that would not be as long as the original wall.

Williams said he has not been presented with any such plan.

Williams said the wall was slated to take six weeks to construct, which would set its completion near the end of July or first part of August.

One of the major concerns for MacDiarmid is who would be held responsible if a portion of the wall were to fall off and hit somebody – he or the HOA.

Town of Flower Mound Director of Community Affairs Michael Ryan said that is not a question he or any town official would probably feel qualified to answer, and that if such a scenario were to unfold, the issue itself would likely be brought to court.

"According to us, the HOA is replacing the subdivision wall, and part of the wall is located on his [MacDiarmid’s] property, but it’s in a 5-foot wall maintenance easement to be dedicated and maintained by the HOA," Ryan said. "As long as the wall meets code and passes inspection, that’s where our [the town’s] legal authority ends."

MacDiarmid said he does not want to bring a lawsuit against the Rustic Timbers Homeowners Association but has not ruled out the possibility.