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Development at higher elevations

Help: My Neighbors Are Flooding Me Out

by Stuart Lieberman
International Real Estate Digest

As an environmental lawyer, I am seeing with increasing frequency claims that people are flooding out their neighbors. People come into my office, and presumably the offices of environmental lawyers throughout the country, complaining that development that is higher in elevation is causing flooding to properties situated at a lower grade.

Why is this happening? I believe that in many parts of this country, the more convenient, easier to develop properties have already been developed. Which leaves the less desirable, more environmentally complex properties to be developed.

This means that properties at higher elevations with “steep slopes” are more likely now to be developed than before. Development on these properties tends to cause flooding after rain events.

In addition, many areas with wetlands are being developed and wetlands are being destroyed. Wetlands do many things; one of which is to control flooding through groundwater absorption. When wetlands are destroyed, the ability to prevent flooding ends and the flooding of downgradient properties becomes more likely.

In many areas of the country, there is insufficient control of stormwater runoff. This is the water that develops after significant rain events. When storm water flow is not managed, it runs out of a subdivision often into lower gradient projects, thereby causing flooding.

Of course, property laws vary from location to location. But it is often true that upgradient property owners cannot modify natural terrain in a manner that results in flooding or injury to downgradient property owners. Thus, if development at higher elevations is flooding you out of house and home, you may have remedies at law and it is important that you seek legal advice.

Who may be responsible? First, the upgradient property owners may be responsible. If these people are mismanaging stormwater runoff such that it is resulting in flooding of your property, they may have legal responsibility.

Second, the Land Use Boards that approved these developments without taking precautions to control flooding may also have responsibility. Please note that many locations make it difficult to sue government entities. Attorneys who are familiar with these laws and understand immunities that government often enjoy need to be retained to provide an aggrieved property owner with the maximum opportunity for relief.

Developers of upgradient subdivisions also may have responsibility. If they cause a flooding phenomenon by improperly misdirecting stormwater runoff, then they have responsibility to downgradient property owners.

In certain parts of the country the failure of a flooded out property owner to address an ongoing flooding problem may result in an implied easement. This means that after a certain amount of time, an aggrieved, downgradient property owner may actually forfeit his or her right to go to court to stop flooding and to seek compensation for the flooding.

If you are being flooded by your neighbor, it may be important to seek legal relief as soon as possible. Not only is there danger of an implied easement , but there is also a danger that any applicable statute of limitations may either curb or entirely eliminate legal rights that you might otherwise have.

Are you being flooded by an uphill property owner or development? If so, see a competent attorney as soon as possible. A delay may result in the forfeiture of important legal rights. These are difficult cases. By no means, however, are they impossible.

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