Going to Court

Feb 25, 2019 | News & Views, What's New

Reprinted with permission from the February 2019 issue of Floodplain Management Tips from the Kansas Department of Agriculture/Division of Water Resources/Floodplain Management Team. While the article is written for a Kansas audience, it is probably applicable nationally according to Steve Samuelson, Kansas state floodplain manager, ASFPM Region 7 director, and Flood Insurance Committee co-chair. Samuelson added this caveat, “I am not an attorney. I often start my training classes by explaining that I got all of my legal training by watching Perry Mason reruns after school when I was 6 years old.” So do check with your legal department before you go to court.

A condition of participation in the National Flood Insurance Program is that communities adopt and enforce a set of floodplain management regulations. Those regulations require floodplain managers to issue permits for all development in the floodplain and see to it that the development meets the requirements spelled out in the regulations.

Problems arise when development happens without a permit. Communities are required to enforce their regulations in that situation. There are steps to the process to inspect the
property, send a violation notice, meet with the property owner, and find a solution to bring the property into compliance. Follow all of the steps. Give property owners all of the due processes they are entitled to.

In one situation a city clerk learned a property owner was storing junk in the floodplain. She shut the water off to his house. The property owner immediately came in to find out why the water was shut off. She told him to get rid of his junk and she would turn the water back on. The property owner got rid of the junk.

In another case, a property owner brought in fill to make a pad to build a garage on top of. The fill was placed in the floodplain without a permit. The floodplain manager hopped on his bobcat, drove over and loaded up the fill, and hauled it away. He used the material to fix some potholes and erosion areas.

These problems got resolved, but the property owners were not given due process. These scenarios could have become even bigger problems.

Follow the steps to provide alleged violators with due process. Send them violation notices and schedule meetings with them. Those meetings with violators aren’t always a lot of fun. Many will grumble, complain, or tell you their hardship story. In spite of any yelling or threats, most property owners will eventually bring their property into compliance in the end. Gaining compliance is the end goal.

For one reason or another, not all violations are corrected or brought into compliance. As an example, there have been two cases in Kansas when property owners hired lawyers and paid the lawyer double what the cost of the elevation certificate from a surveyor would have cost them. It follows that floodplain cases may sometimes end up in the courts once lawyers get involved. Here are some tips about taking legal action to resolve violations.

· Don’t let a problem drag out for years and years. Best to deal with a problem sooner than later.

· Most cases do not end up in court but treat every situation as if it might end up in court from the beginning.

· Always keep your city or county attorney informed, and have a working relationship with your legal staff.

· Document all violations thoroughly. Have a good record keeping in place.

· Allow for an opportunity to correct violations.

· Send a follow-up letter if an initial letter is not responded to.

· Try following up on certified mail with a duplicate letter using an affidavit of mailing.

· Make sure you understand and follow your own regulations.

Community officials should prepare well in advance before going to court. It is perfectly acceptable to review your notes before going to court. In fact, you may say that you want to
review your notes to refresh your memory when you are giving testimony. Some floodplain violation cases drag on for months before they end up in a courtroom, so your memory may not be complete.

It is a good idea to have a pretrial conference with your attorney. Discuss what you are going to say. Your attorney won’t be a floodplain management expert, just as most of the people in floodplain management are not legal scholars. Educate your attorney about flood elevations and freeboard, while getting tips from your attorney about how to present the problem. Here are some more tips on giving courtroom testimony.

· Dress appropriately for court. Does your community provide you with a shirt with your job title on it? That kind of uniform lends credit to your professional position on the matter.

· Speak clearly when you testify. Remember that judges and the public may not know what NFIP and other acronyms stand for. Avoid the use of acronyms and jargon.

· Think for a moment before you speak. Don’t fall into the trap of answering too quickly.

· Be absolutely honest. Stick to the facts. Better to tell a truth that you don’t like than be caught in a lie.

· Don’t argue, make jokes, or lose your temper. Just give your testimony.

· Ask to have a question repeated if you don’t understand it or need time to think.

· Look over to the judge or the jury if there is one. Speak to them as much as to the attorney. A community official can do everything exactly right. The attorney for the community can do
everything right. The floodplain violation can be crystal clear. After all of that, you can still lose in court.

In a substantial improvement case that happened after a fire, the judge misunderstood the difference between zoning and floodplain management. That judge issued a summary judgment against the community stating the property had been legally zoned before the fire and there was no case. Zoning was never the issue in that situation. This was to have been a case about floodplain management and a substantially damaged property that was rebuilt 3 feet below the base flood elevation. There was never an opportunity to educate the judge about the difference between zoning and flood zones because the case wasn’t allowed to move forward.

It isn’t all completely over with when a court case is lost. There are two final options. There is the Federal Emergency Management Agency 1316 List and the Notice on Deed. The 1316 List is a list of properties that are not allowed to buy flood insurance through the NFIP. That enforcement tool often has a delayed effect. The current owner may not have flood insurance or may have insurance from a private company. The 1316 List sometimes harms new buyers who were not involved in the violation, to begin with. New buyers find out about 1316 List after they close
on a property and try to buy flood insurance. Notice on Deed will be found on the deed by new buyers when the title search is done before the closing on the property. New buyers finding the notice may reconsider purchasing the property and current owners have the motivation to correct violations so that the sale will move forward.