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No Injunction for Stormwater Diversion

An Albemarle County Circuit Court denies a permanent injunction to plaintiff investment partnership in its action alleging nuisance and trespass claims arising from diversion of stormwater onto plaintiffs’ property from a stormwater management system that includes a 72-inch pipe; given the high expense of “restoring the status quo” requested by plaintiffs, a permanent injunction in this case simply is inappropriate.

Plaintiffs contend the question is whether defendant Albemarle Place has the right to channelize its excess stormwater onto its neighbors, thereby injuring its neighbors and appropriating its neighbors’ developable property. Plaintiffs argue that the 72-inch pipe, the fundamental cause of the injurious water, is an artificial channel under McCauley v. Phillips, 216 Va. 450 (1975).

Plaintiffs are undoubtedly correct that the situation giving rise to this litigation falls under Virginia’s common law definition of trespass. In the case at bar, defendant has erected a storm sewer system that increases both the rate and volume of stormwater entering plaintiffs’ properties.

Working in tandem with the definition of trespass as a cause of action is Virginia’s modified common enemy doctrine as applied to surface water. In certain circumstances, an upstream landowner may divert water or flood a downstream property but that landowner also has a duty to do so with reasonable care. The Virginia Supreme Court’s application of the modified common enemy doctrine in Third Buckingham Community Inc. v. Anderson, 178 Va. 478 (1941), suggests the reasonableness standard is in regard to the injury caused by defendant’s actions, rather than the actions themselves. Plaintiffs argue Third Buckingham makes clear the acceptance of a modified common enemy doctrine prohibits even reasonable discharges of channelized surface water and diverted stream water, but the court finds this interpretation overbroad.

In further support of this finding that there is not an absolute bar to channeling water onto another’s property, it is noted in Third Buckingham that it is generally recognized a landowner cannot collect surface water onto an artificial channel or volume or precipitate it and greatly increase the natural quantities upon its neighbor to the substantial injury of the latter.

‘Reasonableness’ of system

Defendants contend the offending water in question is a watercourse rather than surface water. This is not a distinction without a difference, as different common law rules govern. Defendants argue the installation of a storm sewer system, including the 72-inch pipe, constitutes “reasonable” management under the common enemy doctrine. Defendants emphasize that it is not common practice to create drainage systems that take into account “100 year” storms and the plans and construction were in accordance with permits issued by Albemarle County and the city of Charlottesville.

However, plaintiffs are correct that the evidence shows the harm is caused by the diversion of surface water by the 72-inch pipe. As such, defendants’ stronger arguments focus on the rules for surface water and, more important, the burden of proof on plaintiffs for granting injunctive relief.

In plaintiffs’ case, Mr. Rotgin was asked specifically how the property was harmed by the water from the 72-inch pipe, and he responded erosion and the likelihood of increased erosion over time. Scott Collins testified there is erosion within the post office easement and it will increase over time. Rotgin testified Sequel cannot build on its property because there would be back water and it would trespass on post office property, which Sequel cannot do as long as they are flooding a neighbor. The “biggest harm’ was that Sequel cannot use its private property and Albemarle Place was exporting the cost of the storm water from their property to the Sequel property and making millions of dollars on their land.

This court finds that neither Virginia law nor standard stormwater engineering practice requires a developer to detain and treat water off site so there was clearly a stormwater management problem which Albemarle Place could address if the design did not injure plaintiff’s property beyond what was necessary. A county official approved the 72-inch pipe and found the plan did comply with Minimum Standard 19 of the erosion control regulation. While the court agrees Albemarle Place is not “immunized” as a result of obtaining the proper permits, the court does consider such testimony significant towards its determination as to whether the injury inflicted went to plaintiff’s property beyond what was necessary in designing the system. The court finds from additional testimony that Albemarle Place did address the erosion issue in development of its stormwater management plan.

While the court finds the design still inflicted injury to plaintiffs, the court does not find it is beyond what is necessary.

This is a claim for trespass which, though it involves the right to quiet enjoyment of property, sounds in tort. Therefore, the general standard for the decision to grant an injunction is appropriate in the case. Plaintiffs’ better argument is that the proposed remedy is not onerous in comparison to the harm caused by the storm sewer system imposed by defendants in the first place.

Given the high expense of “restoring the status quo” requested by plaintiffs, a permanent injunction in this case simply is inappropriate.

Judgment for defendants.

Sequel Investment LP v. Albemarle Place EAAP LLC (Higgins) No. CL 13-199, Nov. 25, 2014; Albemarle County Cir.Ct.;  Isak Howell, Jason C. Hicks for the parties. VLW 014-8-112, 8 pp.

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