Homeowners forced to navigate streets pocked with potholes that could swallow small cars and bridges school bus drivers won't cross turned to the courts as a last-ditch effort to find relief. 

The Hilldale South Homeowners Association filed a lawsuit against Muskogee County Board of Commissioners and Tri-City Development, asking the court to declare the roads within the subdivision as public streets. They also seek an order enforcing the county's obligation to maintain those public streets within the subdivision. 

HOA President Bruce Field said the frustrations experienced by him and other homeowners continue to mount as their roads deteriorate and their concerns get shoveled to the side. 

"We're kind of stuck with the fact that they're literally just taking their time and pushing this back as far as they can," Field said after commissioners decided to hire a private law firm to defend the board. "They're literally doing everything in their power to push it out, and ... if the court rules in our favor, they can file an appeal ... that could take another two years." 

Commissioners contend they lack the legal authority to maintain those roads because the county never adopted the streets of Hilldale South. The developer of the subdivision, they say, is one among others who failed to follow through with the road dedication process.

Commissioners make a record when plats are filed that the county bears no responsibility for the construction, maintenance or repair of any street within a subdivision. They routinely include a statement to that effect in the minutes of the meeting and an audio recording is kept for future reference. 

District 1 Commissioner Ken Doke said commissioners “have done a pretty good job” of making that record providing notice to developers of the road dedication process. He and other commissioners said the process, formally adopted in the autumn of 2019, must be followed before they add new roads to the county's inventory.

John Tyler Hammons, who represents the homeowners association, alleges there was no formal policy in place when developers filed a plat of the subdivision in 2007 and filed a replat a decade later. Hammons, in a motion seeking summary judgment, argues the filing and acceptance of those documents prior to commissioners' adoption of the road dedication policies, constitute common-law dedication of the streets within the subdivision.

Common-law dedication, Hammons said, requires two things: "an intention by the owner and an effective acceptance by or for the public." Hammons, citing case law, said intent "is evident" when a developer files a survey and plat that "set apart certain grounds for the use of the public," and commissioners' approval of those documents constitutes "acceptance."

"These two facts clearly satisfy both elements of dedication," Hammons states in court documents. "Even if Defendant had not affirmatively approved the Plat ..., the subsequent sale of the lots within the Addition in accordance with the Plat and the use of the roads in the Addition by the general public caused the roads to transform into public roads by operation of law."

District 3 Commissioner Kenny Payne said in 2019, when commissioners adopted the existing policy, that there would be no implication that the county will be responsible for roads within a platted subdivision until there was formal acceptance. He also wanted to make it clear that accepting a plat did not obligate the county to accept roads included on a plat because it had been accepted.

Hammons argues that because the filing and acceptance of the 2007 and 2017 plats predate existing policies, commissioners cannot enforce the policy or avoid the common-law dedication.  

Timothy Miller, a homeowner at Hilldale South whose complaints were among those that spurred commissioners' decision to adopt the existing policy, said the money commissioners will spend on lawyers to defend this lawsuit would be better spent on the roads. 

"We've tried every avenue — we tried to get an agreement with the county and the developer, but they wouldn't agree," Miller said." So this has really been our last resort, and we've been met with a fist in our face."

Miller said Hammons secured a default judgment in March after the county failed to file a timely answer to a petition filed in January. That judgment, however, was vacated in May.

District Attorney Orvil Loge alleged the default judgment was granted due to circumstances he described as an "unavoidable casualty or misfortune." Loge states in court documents an employee of the Muskogee County Clerk's Office accepted service of the petition and summons by certified mail but failed to forward those documents to his office.

District Judge Timothy L. King also determined there was "an irregularity in obtaining the judgment," which required it to be vacated. That irregularity, King ruled, was the failure to file a motion or provide notice of before default judgment was sought by plaintiffs. 

King will hear arguments Sept. 10 for and against the homeowners' motion for summary judgment. 

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