Legal Question in Real Estate Law in Ohio

Re: Drainage issues and City Liability

Dear Underwater HomeOwner: The Municipality is liable for failing to control flooding, as a matter of law.

CONSTRUCTION LAWLETTER - Vol. 2003- 8 August, 2003

In a decision important to property owners, in 2001 the Supreme Court of Ohio held:

�The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation. Fifth and Fourteenth Amendments to the United States Constitution; Section 19, Article I, Ohio Constitution. Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged.

" 'In cases of either physical invasion of the land or the destruction of a fundamental attribute of ownership like the right of access, the landowner need not establish the deprivation of all economically viable uses of the land.' " But in other cases, which generally involve a claimed regulatory taking, the landowner must prove that the taking deprived all economically viable uses of the land.�

In an earlier decision affecting property rights, the Court of Appeals for Cuyahoga County, Ohio held that the defense of sovereign immunity does not preclude liability for damages. �Frequent flooding constitutes a taking.�

The established law of Ohio provides that when a municipality superimposes its storm sewer system upon a natural watercourse, it must do so in a manner consistent with the riparian rights of adjoining landowners, i.e., it must do so reasonably.

Further, when a municipality superimposes its storm sewer system upon a natural watercourse, the defense of sovereign immunity does not preclude liability for damages caused by any attendant abridgement of riparian rights.

Frequent flooding which results from the construction of a public improvement and which deprives an owner of the use and enjoyment of his property constitutes a taking, for which compensation is required. The potential of an owner's property to flood at intervals of "not substantially more than ten years" does not constitute the frequent flooding which is compensable by the decisions of the Ohio Supreme Court.

The 8th District Court of Appeals for Cuyahoga County stated: �Admittedly, the Ohio Supreme Court has held that the defense of sovereign immunity precludes liability for damages caused by a municipality's negligent design of its storm sewer system. Hutchinson v. Lakewood (1932), 125 Ohio St. 100; Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St. 250.

Good luck in resolving your problem. Contact an experienced Attorney ASAP.

Sincerely,

J. Norman Stark