March 6, 2013

PLF argues for cities to be accountable when they flood their residents

By Anthony L. Francois Senior Attorney

PLF colleague Jennifer Fry recently posted on the frustrations of a Sacramento family after their home burned down.  FEMA’s de-certification of the levees protecting their neighborhood resulted in a building moratorium that prevents the Taylors from rebuilding their fire-destroyed home, even though they have insurance to do so.  But what if the Taylors (along with all of their neighbors) lost their home to water instead of fire?  After all, FEMA says the levees are not reliable, and require a massive improvement.  Where a public improvement damages private property, the owner has the right to seek compensation through inverse condemnation.  In California, public agencies whose improvements substantially damage private property are strictly liable (i.e., the property owner need not prove that the agency was negligent).  But two California Supreme Court decisions, applicable only to levee failures that damage property historically subject to flooding (such as the neighborhood where the remains of the Taylors’ home sit), hold that in such cases the plaintiff has to show that the levee agency acted unreasonably.  So, the Taylors cannot rebuild their home because the levee is not safe, and they might not be compensated if the levee actually fails as well.

So this is the state of inverse condemnation law in California: strict liability where public improvements cause physical damage to private property, with a limited exception for levee failures.  But now, some cities are trying to use the levee rule to evade accountability when their storm drains flood their residents’ property.  The City of Half Moon Bay recently argued (unsuccessfully) that it should not be responsible when its storm drains created artificial wetlands on a parcel of private property, after which Half Moon Bay denied the owner a development permit based on the wetlands it had created!   And the City of Redding is now arguing in court that it should not be liable for harm it caused when its storm drain system flooded a multi-family apartment building in a severe 2009 storm.

The Biron family, which owns the property, sued the City to recover for the damages which Redding’s storm drains caused, but were denied recovery at trial.  The trial court ruled that, even though the Biron’s property is not in a flood plain, the levee rule applied and that the City is not strictly liable.  The Birons disagree and have appealed the decision.  PLF disagrees with the trial court as well, standing as it always does for full and just compensation of those whose private property is damaged by the government.  PLF filed this amicus brief this week, arguing that the trial court mistakenly let Redding off the hook by not holding the City strictly liable for the harm it caused.  We will keep you posted on the Biron’s continuing quest for justice.

 

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