Class-action status sought for IW stormwater lawsuit

Published 10:17 am Thursday, November 2, 2023

The lawyer for a deceased Carrollton man whose estate remains embroiled in a legal battle with Isle of Wight County over a collapsed stormwater pipe is looking to expand the case into a class-action lawsuit.

Otis Brock, 88, died in 2022. He and his neighbors Brian and Sue Fernaays, all residents of Deep Water Way in the Brewers Creek subdivision, had filed a federal lawsuit against the county in 2021 alleging Isle of Wight had illegally taken and damaged their land by not repairing the pipe.

Joseph Sherman, the attorney who had been representing Brock and his neighbors, filed a motion in May to substitute Brock’s daughter, Lisa Rhodes, for Brock himself as a plaintiff. He filed a separate lawsuit in August naming Vincent and Andrea Fuschetti, whose home on Marsh View Court is also located within the Brewers Creek subdivision, as plaintiffs alongside the A.D. Fuschetti Trust.

Subscribe to our free email newsletter

Get the latest news sent to your inbox

The Aug. 17 class-action complaint describes the proposed class as “all owners of real property in the Brewers Creek subdivision asserting the taking and damaging of valuable property interests from an elected decision to abandon ownership and maintenance of underground drainage easements.” It claims the Fuschetti’s 2019 complaint of a sinkhole opening up in their yard at the site of a failed stormwater easement was the impetus that prompted county officials, that same year, to author a paper titled “Orphaned Outfalls in Rural Virginia Localities,” intending the document for the Virginia Association of Counties. The “Orphaned Outfalls” document argues that while modern regulations now require stormwater easements be dedicated to a development’s homeowners association, subdivisions built out in the 1990s and earlier frequently lack a stated designee responsible for the system’s upkeep.

The county argues it doesn’t own the easement spanning the Brock-Fernaays properties. Sherman’s August complaint, however, is asking the court to declare otherwise for all homes located within the Brewers Creek subdivision, citing as an exhibit a 1989 plat of Brewers Creek, which included in its declaration of covenants language stating drainage easements located within the development “may be freely used by the County of Isle of Wight for the benefit of the owners of said lots.”

The August complaint further alleges “the county maintained this infrastructure” from 2010 through 2013, and only began disputing ownership in 2014 when county officials began a campaign to persuade the Virginia Department of Environmental Quality to release Isle of Wight from its municipal separate storm sewer system, or MS4, permit obligations by arguing it didn’t own  or operate a municipal stormwater system.

The lobbying campaign proved successful in 2016, which allowed the county to cut the stormwater fee it adds to the real estate tax bills of residents and businesses by about 25% that year – dropping it from $72 to roughly $53 per year for most county residents. If the county were to acknowledge municipal ownership of a stormwater s 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, the “Orphaned Outfalls” paper argues.

The 2021 lawsuit and the proposed class-action complaint have each been assigned to U.S. District Court Judge Arenda Wright Allen. The last filing in the 2023 case was Aug. 31, while the last filing in the 2021 case was Oct. 30. The county has yet to submit a court filing in response to the 2023 complaint.