Stormwater lawsuit heads to federal court
Published 5:33 pm Tuesday, March 30, 2021
Carrollton resident Otis Brock and his neighbors, Brian and Sue Fernaays, filed a lawsuit against Isle of Wight County in federal court March 3 in an effort to compel the locality to take responsibility for a collapsed stormwater pipe that’s been washing away their yards since 2018.
According to court records, there’s a 20-foot easement spanning 10 feet into both yards for the pipe, which was installed in the early 1990s. But the records don’t designate a specific owner for this particular easement and no one — neither the county nor the Virginia Department of Transportation — has agreed to claim ownership of the pipe and fix the problem.
Now, whenever there’s heavy rainfall, stormwater runoff comes rushing into the sinkhole, which has grown to a 12-foot-deep, 20-foot-wide chasm spanning the Brock-Fernaays property line.
The suit claims violation of the Brock and Fernaays families’ Fifth and 14th Amendment rights under the U.S. Constitution, which prohibit government entities from taking private property without due process or compensating the owners if said property is taken for public use – as well as violation of the Constitution of Virginia, which states private property shall not be taken “or damaged for public use without just compensation.”
“The County has taken and damaged the Plaintiffs’ property by using the Plaintiffs’ property to provide stormwater retention and drainage and failing to maintain the public stormwater drainage system,” the suit argues. “The public use of the Plaintiffs’ private property caused and continues to cause a physical invasion of stormwater and erosion of areas outside of the County easement.”
Brock and the Fernaayses aren’t alone either, though to date they’re the only ones who’ve sued. According to Assistant County Administrator Don Robertson, Isle of Wight had received a total of 28 similar complaints as of November 2020 involving outfall pipes.
The county, however, argues it doesn’t own the easement, and refers to easements that lack clearly defined owners like the one spanning the Brock-Fernaays property line as “orphaned outfalls.” County staff authored a position paper in October 2019 — intended for the Virginia Association of Counties — which argues that while modern development regulations now require such easements to be dedicated to a development’s homeowners association, subdivisions built out in the 1990s and prior frequently lack a stated designee responsible for the stormwater system’s upkeep. The development’s builder or a homeowners association “was the implicit beneficiary,” the paper argues, but in cases where such associations are now defunct or never existed “an unanticipated and costly asset remains.”
In 2016, Isle of Wight successfully negotiated with the state Department of Environmental Quality to be released from its municipal separate storm sewer system (MS4) permit obligations, arguing that it did not own or operate a municipal stormwater system. This allowed county staff to cut the stormwater fee it adds to the real estate tax bills of residents and businesses by about 25% — dropping it from $72 to roughly $53 per year for most county residents. If the county were to acknowledge municipal ownership of a stormwater system or agree to maintain or repair privately-owned stormwater outfalls, it would run the risk of once again being subject to an MS4 permit — and potentially would need to increase its stormwater fee to cover its repair and maintenance obligations, the paper argues.
The lawsuit asks the court to decree Isle of Wight County took and damaged private property rights without payment and that a jury award “just compensation,” plus legal and expert fees and costs, an award of pre-judgment and post-judgment interest and “any other relief as necessary to obtain the interests of justice.”
Isle of Wight — via its outside counsel, Pender & Coward P.C. — answered the suit with a filing on March 19, which admits the county refused to make repairs, but denies all other allegations, either outright or on grounds that it is “without sufficient information to admit or deny the allegations” or that they “constitute conclusions of law to which no answer is required.” For those that reference the county’s position paper, the county’s filing states the document “speaks for itself.”
“Defendant denies any wrongdoing and denies that Plaintiffs are entitled to any relief whatsoever,” the county’s filing states.