Dismissal of City in Water Runoff / Property Damage Action

Attorney Courtney Mayo successfully obtained a dismissal on behalf of a municipality in an action arising from property damage allegedly caused by water runoff. The plaintiff homeowners filed the subject action against a developer, a drainage contractor and the City, alleging that plaintiffs’ property was significantly damaged when adjacent land was improperly cleared of trees resulting in a mudslide and repeated water runoff onto the plaintiffs’ property. The plaintiffs alleged that they sustained more than $356,000 in property damage, loss of use, and diminution in value as a result of the improper clearing of the adjacent property.

Plaintiffs alleged that approximately ten years ago, the plaintiff developer began clear cutting an adjacent hillside property. After significant rainfall in 2009 caused a mudslide onto an abutting neighbor’s property, the defendant developer allegedly dug two channels or ditches to divert water onto from the neighbors property toward the plaintiffs property. The City subsequently issued a zoning violation in connection with the clearing of the adjacent land and ordered that same be stopped. The developer subsequently filed a request for a special building permit from the Zoning Board of Appeals. In support of its application, the developer submitted a report from the defendant drainage contractor whom it had hired to provide a plan for proper drainage of the subject property. The City Zoning Board of Appeals eventually approved the developer’s request for a special building permit on the condition that the defendant comply with the proposed plan for proper drainage.

In 2010, the plaintiffs experienced flooding to their home following two copious rain storms, one of which resulted in 14 inches of flooding in the plaintiff’s basement. The plaintiffs complained to the City and the Zoning Board of Appeals. The Zoning Board determined that the defendant developer had failed to comply with the conditions of the special building permit.

In addition to its claims against the defendant developer and drainage contractor, the plaintiffs claimed that the City had failed to “establish policies, or to follow established policies, for enforcement of special conditions imposed by the City’s Zoning Board of Appeals in allowing Special Permits as it relates to the eight (8) special conditions imposed [on the defendant developer] in its . . . Special Permit.”

Prior to discovery, Attorney Mayo moved to dismiss the action against the municipality on the grounds that it was immune from liability pursuant to M.G.L. c. 258, § 10(j). The judge denied same and instead gave the plaintiffs time to conduct discovery on the issue of whether the City did anything “offensively” to cause the plaintiffs’ harm. When discovery was completed, it became clear that the City could not be held responsible for the plaintiffs’ harm. Plaintiffs had no alternative but to dismiss their claim against the City pursuant to G.L.c. 258 section 10(j).