Agenda - Council - 03/12/1984 - Laserfiche WebLink

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This essentially amounts to "every person for him or herself." In contrast, the "Civil Law Rule" subjects all landowners to a duty to maintain nat- ural drainage and flowage patterns. Anyone who alters the location or intensity of surface drainage may be liable to upstream or downstream property owners who incur significantly increased flood damage as a result. The "Civil Law Rule" applies in many states under conditions which should have been reasonably anticipated but is sometimes sus- pended in event of a flood of such magnitude that it is considered and "act of God." In recent years, many states have embraced a compromise" Rule of Reasonable Use." This rule holds that a property owner may alter natural drainage patterns if the benefits of doing so out- weigh the costs to other property owners in terms of increased flooding. The "Reasonable Use Rule" is sometimes invoked in urbanizing metro- politan circumstances where drainage alteration is inevitable. It requires courts to decide the issue of reasonableness on the facts of each case and there- fore provides a less predictable guideline to prop- erty owners than the more traditional role stated previously. In general, however, anyone undertak- ing modification of natural drainage and flood flows does so at his or her peril. Q. Are subdividers and builders liable to pur- chasers for subsequent flood damage? A. At common law, sellers had no duty to inves- tigate or disclose flood or other hazards, although they could not misrepresent known hazards or intentionally mislead buyers. This doctrine of "Caveat Emptor" (let the buyer beware) has been partially or substantially modified in many states by statutes requiring that subdividers investigate and disclose information concerning wet soils or flood hazards. In addition, courts have modified common law rules in an increasing number of jur- isdictions to hold sellers liable for flood damages, paxticularly when sellers implicitly or explicitly represent that the land or buildings on it are suit- able for particular purposes such as residential dwellings. Q. Are banks liable to mortgage borrowers for failing to disclose flood hazards. A. Under the Federal Disaster Protection Act of 1973, federal agencies and lending institutions regulated or insured by the federal government are required to disclose to prospective mortgagees flood hazards on property where federal flood insurance is available. Several federal courts have held that banks are liable for subsequent flood damages to borrowers who are not so informed. However, other federal courts have held that no liability results from violation of the statute. Q. Are governmental bodies liable when their actions (a) cause or (b) fail to remedy flooding of private property? A. In general, governmental bodies are not liable for failing to pr~.vent flood damages but they may be liable for causing flooding. This depends in part upon the level of government. The federal government is generally immune from liability for failing to prevent or causing certain types of flood- ing associated with flood control projects or pro- grams. 33 U.S.C. Section 702c declares: "No lia- bility of any kind shall attach to or rest upon the United States for any damage from or by floods or floodwaters at any place..." In contrast state governments, counties, special districts, and local governments may be held liable for "misfeasance." Where a non-federal public entity undertakes to control flooding but does so ineffectively, liability may result. For example, a flood control district may be liable for negligence in constructing a levee which causes overflow of lands not otherwise subject to flooding. A munici- pality may also be liable for failing to clean out debris from a flood control basin or for approving a subdivision plan or issuing a building permit which results in flood damages on land in the vicinity of the project. For example, a village in Ohio was held liable for flooding damage where it provided a storm sewer system which was inade- quate to cope with flooding caused in part by the industrial park development approved by the village. 6. Q Are public employees personally liable to property owners whose rights may be/are infringed by public regulations or other ggv~- ~ernmentaLac!ions? // A. Traditionally public employees have not been // held liable to private property owners from gov- / ernmental activities which infringe upon private [ property rights. This immunity extends to most [ federal employees, state legislatures, and locally elected officials. There is some speculation that · state and. local ag~fiCy s~aff' may n6w beP i{abi~ ~ under certain circumstances for infringing private \ righis' U~ider Section 1983 of the Federal Civil ~'\x. ~[s-- Act. However, it appears that no court has