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P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 33664
Experience:  16 yrs. of trial experience
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Hello, we have a home in a high end neighborhood in Jessamine

Customer Question

Hello, we have a home in a high end neighborhood in Jessamine County, Kentucky. When we purchased the home in foreclosure we were told that the backyard was a "natural" drainage area. Our backyard contains throat holes that flow water into caverns or sink holes.
We did not realize that the streets from the front of our neighborhood drain into drain pipes that are positioned several houses up from us. The amount of water that flows out of these pipes causes our backyard to flood to the point that it is 15 feet deep with water and close to 80 yards wide. These throat holes cannot handle the entire front of the neighborhoods street water and it causes severe flooding that can stay two to three weeks. Our backyard is surrounded by 4 plank fences that the water covers. The water can stay for 2-3 weeks if the throat holes fill up with water, ruining our backyard. I have tried to talk to planning and zoning but no one wants to accept responsibility for the poor design of this drainage system. Is it legal to flood a properties backyard in a neighborhood? We are concerned that the erosion that is caused be the massive amounts of water that flow into our yard will cause the sink hole to collapse leaving us with the responsibility to fix a problem that was created by the developer and the planning and zoning in Jessamine County. We have also over the past two years have found four hypodermic needles that have flowed through the drain water into our backyard. We don't want this issue to devalue our home. How do I need to proceed? Is it legal to have chosen one yard to drain and flood all the street water into? We don't want to have a long legal battle with the county. What are the chances they will correct the drainage issue? A natural drainage area to me indicates that it can drain water that is off our and neighboring properties, not provide drainage for every street in the front of our neighborhood. Where do I go from here? What are the chances that something will be changed? The houses have been built and the neighborhood is established. What laws are there to protect property owners from having to deal with this burden and expense? Thank you.
Submitted: 3 years ago.
Category: Legal
Expert:  P. Simmons replied 3 years ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

I am very sorry to have to bear bad news. What you describe, I agree is a clear problem with the design of the development. When they planned this community, it seems they did not understand how the water would flow...or if they did, they ignored the impact, at least as your piece of property is concerned.

The problem you face is threefold.

The first is standing.

Had you purchased this property new, from the developer, you would be able to sue the developer for this poor design. But since you purchased the property from the bank, you have no legal "standing" to sue. The law will not allow you to sue the developer since you were never in contract with the developer.

The second has to do with sovereign immunity. Under the law, it is possible in some cases, to hold a government agency liable for negligence. But the law that allows this is complex and strictly limits an individuals ability to sue. To sue the planning board, you would have to follow the rules to sue the state. And these rules exempt the state from liability in the case of "discretionary function". Basically, if the action you wish to sue over was a "discretionary function"...the individual or agency had discretion to make the decision, then you can not sue. This makes it tough, since unless you can prove that the planning board knew that this was going to be a problem, but allowed the design regardless? Then you can not sue them and hold them liable.

The third issue is the statute of limitations. To sue the municipality you have only 2 years from the date of action (the date they approved the zoning). If this is an established community, I suspect that more than 2 years have passed.

So I am very sorry to be the one to tell you that the circumstances you describe? The law is not on your side. You are not going to be able to sue the developer since you were not in contract with the developer, and it is unlikely you can sue the municipality based on the rules that limit claims against the state and because of the statute of limitations.

Let me know if you have more questions...happy to help provide more information if I can.