Posted on July 22, 2014 by Charles F. Becker
Every city of any size wants development. Some prefer commercial over residential, but they share the common belief that growing is the best way to survive. The problem that arises, however, is nature.
Development is, necessarily, hard surfaces. It is rooftops, streets and driveways. In other words, it is impervious area. When rain hits the impervious area, it must be diverted, collected and pushed downstream. While attempts can be made to allow it to soak into the ground, the reality is that there is simply no way to make up for all of the new impervious area without a great deal of planning, preparation and expense.
Most attorneys who practice in the area of water regulation have received a call from a business or homeowner that is located at the “bottom of the hill.” These entities are the ones who are feeling the effects of the urban development. They have noticed that over the past five or ten years, they have been receiving more and more water to the point that they are now flooding on a routine basis. They ask the obvious question: Who is at fault? Who can pay me for the destroyed basement, the flooded parking lot or the months of work stoppage while repairs are made?
In most states, riparian law prohibits the upstream neighbor from altering the water flow from his/her property in a way that adversely affects the next door neighbor. But that does not provide a solution when it is the cumulative effect of many upstream neighbors, all of which have been issued permits from the city, that is the root of the problem.
As was recently reported, the stormwater runoff question was called in a recent series of class action cases filed in Illinois by an unlikely plaintiff, the Illinois Farmers Insurance Company. In the suits, the insurance carrier alleged that 200 cities in Illinois had negligently maintained the stormwater system, had failed to remedy a known dangerous condition and had undertaken an unlawful “taking” in that the government had appropriated the properties of others to use as diversion and retention basins. The carrier sought to recover amounts it had paid out under flood claims made by their insureds.
Interestingly, about fifty days after filing, Farmers Insurance filed a notice to dismiss the action. The carrier said that it had successfully brought important issues to the attention of the respective cities and counties and that it hoped to continue a constructive conversation with the cities to build stronger, safer communities. As one would expect, the spokesman for the cities believed that the dismissal was because the carrier recognized it did not have sufficient grounds for the suit.
There are some things that local governments are particularly suited to do: manage solid waste, ensure the timely delivery of electricity and coordinate the development and maintenance of streets, for example. These are matters that potentially affect everyone within the city limits and for which everyone must pay. There is no better example of this than addressing stormwater that lands on every property in the city. Having a system in place that safely carries the stormwater away from buildings cannot be done by any single landowner. And regulating the bigger picture — building the necessary stormwater infrastructure while encouraging development — is uniquely within the purview of the city.
It would appear that the proverbial warning shot has been fired across the bow. If cities are going to encourage activity that significantly exacerbates the stormwater problem, they may also be charged with protecting those that are affected by the fallout from those activities. For this problem, time, without action, is only going to make the problem worse and the solution more expensive. And counting on the next case being voluntarily dismissed is a lot like hoping the rain won’t fall.