Going to Court

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

Reprinted with
permission from the February
2019 issue of Floodplain Management Tips
from 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 a
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 process 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

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 in to 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 good record keeping in place.

· Allow for an opportunity to correct

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

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

· Make sure you understand and followed
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 court
room, 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 motivation to correct violations so that the sale will
move forward.