11/30/06 Down
Stream Flooding
While
going through some DallasArena.com archives,
I saw your article about the deaths due to flooding on Ovilla Road
last summer. That was in Ellis County and had nothing to do with Dallas
County.
Last spring, my wife and I were visiting a friend on Springbrook in Dallas.
When we left, we went down Abbot and turned right on Fitzhugh, intending to
cross Turtle Creek. All of the cars were turning around and going back east
on Fitzhugh. Little did we know that a woman had lost her life almost at
the same time we had started down Fitzhugh.
I am well aware of the danger of storm water. The bad thing about
Fitzhugh is that it is one way. A person could
see the water is too high and decide she needs to back up and get out of
there. However, with a long line of traffic behind her, she can?t turn
around. When she finally realizes she needs to leave her car, the
water has risen too high. That woman didn?t
attempt to cross a rain swollen creek. It was the
one way road design that gave her no escape when she realized the water was
too high.
Had my wife left our friend?s house 15 minutes earlier, we might well have
been the drowning victims. The tendency is to turn right on Fitzhugh from
Abbot rather than left at that point, because there is a dangerous left turn
from Abbot to eastbound Fitzhugh.
I am a former city council member of the city of Lancaster. I campaigned on
issues of water, sewer, streets and drainage in
1995. When new zoning changes were
requested, I posed the question of what the effect
would be on drainage if the property were covered to the maximum legal
limit. I asked developers what they were going to do with their storm
water. I wanted to know if the commercial development would have a negative
impact on storm water drainage.
Our city attorney, Bob Hagar, of the firm Nichols, Jackson, Dillard, Hagar
and Smith, came down to the podium and told us we couldn?t ask that question
during a consideration of a zoning change. He said storm water issues were
a matter for city staff to deal with. So, there
you have it. City councils have no power to limit growth in order to
minimize storm water impacts or to select a type of zoning that will lead to
less total land area coverage.
Property rights people will get all over you if you deny a zoning change
from A-O (Agriculture Open) to say, S-F 5 (Single Family 5), if you don?t
have some really good reasons to deny them the
highest and best use zoning for their property. They come in with all these
real estate marketing experts to prove the highest
and best use is high density residential. If all you have is a vague fear
the new development will have an adverse effect on
storm water and deny zoning, you?re going to get sued for denying them their
property rights.
I tried to make the argument that everyone might have a right to develop his
property to the highest degree of intensity, but that no one, under Common
Law principles has any right to increase the burden of storm water on a
person lower in the watershed. That means that no one has any right
whatsoever to dump more water in a creek than went
into the creek before the property was developed. That also means the
developer of Collin Creek Mall or Stonebriar Mall, whose storm
water runoff hurt someone five miles down the river, is liable to the
person damaged.
From a legal standpoint, the problem is to connect
the mall development to
downstream damages. It is an engineering nightmare to determine
which developments caused the damage.
You only get two years from the time the development
is done and the time the damage
is suffered to file a suit for damages. So, the developers of Collin
Creek Mall, Stonebriar or Grapevine Mills are off
the hook legally.
The statute of limitations protects them forever. Cities aren?t legally
responsible when their zoning decisions lead to downstream damages.
Common Law principles regarding storm water damages are sound. It is just
difficult to develop mathematical and statistical models that will predict
or prove a causal relationship between a particular upstream development and
downstream damages. If these mathematical and statistical models could be
developed, we might see more private citizens getting together to sue
upstream developers and stopping development where city staffs decide to
play politics instead of adhering to sound engineering principles.
It is tempting to believe engineering is an exact science. We should know
better. Engineering failed in the Kansas City Hyatt hotel.
Engineering failed in New Orleans.
In my own hometown, if I had not been vigilant and demanded some changes to
the storm water treatment of a project adjacent to my land, I would have
been damaged by a storm water plan approved by my city engineer. Just as
there is a variety of skill levels among physicians and attorneys, so there
is a variety of skills among engineers. Engineering opinions can differ.
The problem is upstream developers have a lot of money to hire civil
engineers. Property owners can?t afford the lawyers and engineering experts
to fight the developers. We can write about our concerns, but until we have
an engineering expert on our side, we aren?t going to have a chance, even if
we have lawyers willing to work with us on their fees.
You know cities want tax revenues any way they can get them.
Lancaster has a soon to be departed city manager
who positively scorns cornfields and wheatfields, while he elevates rooftops
and sticks and bricks. By the way, he?s a liberal socialist. I don?t think
he understands the impact of development on storm water. To the credit of
some of our developers, though, they have been building detention and
retaining ponds recently. Whether they will have the effect of reducing
storm water runoff into the creeks, I don?t know, but it is worth a study.
For short term events, it might slow down the water, but once the retention
ponds and detention ponds get filled, water is going to flow off these
parking lots, streets and rooftops in a sheet, much as it would in the case
of ground saturation.
I can absolutely assure you I am in no way in favor of the explosive growth
we are seeing in Lancaster. It is not happening by accident.
It is happening partly because of specially
targeted home loans that became available after the reauthorization of the
National Housing Act. These loans are targeted to first time homebuyers.
The goal is to make property owners out of them. They came to Lancaster
because Lancaster had a lot of cheap, agricultural land that the old farm
families were willing to sell. It wouldn?t be happening if it were not for
those HUD backed loans and 100% financing. The same house in Lancaster
would cost $20,000 more in Mesquite or Garland. It is an artificial market.
Water for Texas 2002 (published by the Texas Water
Development Board) allocated enough water for a
population of 31,000 in Lancaster in 2050.
Lancaster ignored that study and is shooting for a build
out population of 75,000. Last summer, I saw very few water
conservation efforts in Lancaster. Instead, I saw people turning on their
automatic lawn sprinklers. In some cases, I saw automatic lawn sprinklers
running while it was raining.
Thomas Lane Allen
Attorney at Law
Law Office of Thomas Lane Allen
