Note: this is one of two articles on this subject today. See the other: “All Those Yards Flooding from New Construction? Blame ITT, Nature or Changing Codes, But Not Builders, City Finds.”
Should Palm Coast government provide more than advice and technical help to residents who have seen their front yards and back yards flood as new homes have gone up on adjacent lots, at times rising much higher than their own? Should the city offer financial aid or do some of the required repair work itself on yards that need drainage improvements, rather than leave residents to foot the whole bill?
The answer may be in the legality of it, and the legalities currently and rather clearly speak against providing any kind of treatment that could favor private property owners.
“As far as providing some sort of assistance,” City Attorney Neysa Borkert said, “the city council needs to keep in mind that you can only expend public funds to help the general public. Public funds cannot be used for private gain. So that really has to be a threshold question when considering what type of assistance you’re going to provide to property owners that may be experiencing issues.”
Palm Coast City Council member Ed Danko was heartened by the city administration’s briefing on Tuesday about redirecting staffers’ efforts to gather and analyze data from flooding yards. But it’s not enough. He wants to go further. Though he did not specify how much further, he hinted at increasing the city’s role and commitments.
While he did not mention financial commitments, his proposal quickly drew in cautions and more direct references to such commitments, and how the city should be careful about setting a precedent involving only a relatively restrained segment of its property owners.
Danko was not dogmatically wedded to the idea of specific aid. He wants options or ideas. “That’s why I brought this up,” he said, “to give some direction to staff to begin moving forward and thinking down the road on what we can do for those folks, you know, that have been affected.”
The proposal is opening a new front in the debate over the flooding issue that, one way or another–and legal or not–the council may have to face, especially if it picks up momentum among residents and in Danko’s messaging: he’s running for a County Commission seat, and in the flooding matter has found a strong issue as attention-grabbing as it is of genuine concern for many.
Danko wants a “process” that would alleviate the residents’ issues beyond the ongoing efforts, possibly including a citizens’ committee, possibly including means to help residents shoulder the costs they’ve incurred to deal with the problems. “My thoughts are that we will probably have to set aside money. And I don’t know how much at this point yet. But we need to set aside some money to begin assisting these people.”
None of the council members dispute the fact that the flooding issue is now a top priority. But the first priority among priorities, Mayor David Alfin and Council member Theresa Pontieri said, is to continue the current focus on data gathering so as to have a factually stronger handle on the issue. He made it explicit: “I don’t want to go down a path that’s going to lead us to something that would expose the city to a liability,” specifying that as “a fiduciary responsibility to make sure we maintain that at all times.”
Pontieri is especially cautious about going in the direction of a special program for a limited number of residents. “I want to tread very lightly as to what we open ourselves up to as a city, because we have 102,000 residents in the city of Palm Coast and they all pay taxes,” Pontieri said. “So we are stewards of every single one of those tax dollars.”
Pontieri no less than Danko has been pushing the administration to address residents’ issues in tangible ways, beyond words and promises. But she, too, puts a premium on process–just a different kind of process than the one Danko is proposing, at least for now: “So we have to be very careful how we look at each one of these properties. I’m a very big proponent right now–I know it’s taking time–of being very diligent about this fact gathering process. I think that’s got to be priority number one.”
For instance, she would have no issue having the flooding matters displace some of the city’s routine inspections, if workforce priorities are an issue.
Council member Nick Klufas fell on Pontieri’s and Alfin’s side as well–ensuring that existing residents with flooding problems are incorporated in the city’s response, and getting the city’s technical manual updated to prevent future problems of the sort.
But it was Neysa Borkert, the city attorney, who applied the strongest brakes on city priorities and commitments. For example, redirecting personnel to focus on flooding issues instead of on permits could cause legal liabilities for the city, because there is a “shot clock” on issuing and following through on building permits and the numerous inspections those require. She would not want to have city staffers placed in a position where they could violate that shot clock.
More pointedly, Borkert very clearly shot down the sort of direct benefit to private property owners that Danko was hinting at. “One person is experiencing issues and setting up some type of program to only fund fixing that lot would not rise the level of being a public benefit for the rest of the public,” Borkert said.
Beyond that, when the city reviews plans and building permits, it would not expose itself to any sort of liability if this or that property ends up flooding, because the city has sovereign immunity: it may not be sued over that sort of responsibilities.
Danko still wants a “two-front attack on this problem,” both to address the future–the technical manual, for example–and the present: the residents who have been harmed by flooding. Council members did not disagree, with an eye to grants that could possibly pick up costs that city funds could not assume directly.
“This is not a problem that goes away,” Alfin said. “I mean, quite frankly, this is a problem that probably only gets worse as we go forward in years. We have a lot of catch up to do with planning that may have seemed ideal at the time, but now, 50 years later, it’s not 30 or 50 years later, we’re finding holes that that we certainly need to plug or shore up at this time.”
Land of no turn signals says says
Why can’t they tweak the code so there isn’t such a height difference?How about pitching the lot a bit more to the front swale ?
JimboXYZ says
““This is not a problem that goes away,” Alfin said. “I mean, quite frankly, this is a problem that probably only gets worse as we go forward in years. We have a lot of catch up to do with planning that may have seemed ideal at the time, but now, 50 years later, it’s not 30 or 50 years later, we’re finding holes that that we certainly need to plug or shore up at this time.””
Somehow I just don’t have the confidence in Alfin doing anything more than he’s already demonstrated the incompetence necessary to create said issues with flooding. In 2.5-3 years, he’s done what decades of climate change (CC) & global warming (GW) haven’t done in areas that weren’t flood zones until all of the residential approvals were rubber stamped as mere formalities. What CC & GW would’ve needed decades in the future to accomplish, that timetable has been accelerated. What isn’t being said about the properties & swales flooding is that there is a residential street that will now be on soggier ground at the edges. Who knows how much of the water has penetrated the soil. But expect potholes at the edges ?
As the streets where new residential has been constructed, That’s where the potholes are now. The swales with new residential, the water level has increased. All those trees that were cleared, those absorb the rain water, just as the ground does. Quite often the new construction lots erode into other’s properties, if the water directly flows. I’ve noticed both my swale & back end of the lot with deeper puddling in the swale & back line of the property that never occurred until a new construction went in adjacent to mine & sharing the back end of an extended property line. I have no idea of how that is going to effect the tree line I have with the puddling, Guess those Southern Yellow Pines are now Pond Pines/Marsh Pines now ?
TR says
Of course the city doesn’t want to do anything that would cause a liability issue. They messed up a long with the builders and they both should be liable for the fix. If they try to pass the cost of whatever fix they come up with to the homeowner then I’m almost positive there will be a law suit from those homeowners. And rightfully so.
Dennis C Rathsam says
Time for a new attorney! The city of Palm Coast approved all these homes to be built! Its all on them! The city inspectors, should have caught this. You dont have to be a genius to see one home is higher than the other. The builder should have had a stop order, no more building until you fix the problem. But not here in Stuff Em in Alvins Palm Coast. He wont be happy till theres no more lots to build on, with flooded homes and streets throughout Palm Coast. When I bought my home I wasnt in a flood zone. Thanks to the fools at city hall, with all the construction now Im in a flood zone. Insurance cost more, now I need flood insurance, and my taxes went up! Does anyone in Town Hall care? Houses are a persons biggest investment, some save 1/2 their lives to buy a home, then the city comes along and due to thier complete irisponsablity, and now theres a big problem, with no answer in site. And the homes just continue to be built.
dave says
Well it’s “amazing” that some of these original homes did not have flooding issues until the city had the new home going up next to it elevated by lots of dirt to increase the elevation. Higher elevation of the new home caused water run off, YEP downhill on the original property below. This is not just a CITY issue but a county issue as well.
jeffery c. seib says
Of course, the city attorney is taking the side of the builders and developers against the residents. This is the very thinking that has gotten us into this mess. This problem needs special attention right now. Why can’t the city attorney at the direction of the city council draft a special ordinance that because of this calamity the city is temporarily dismissing the ‘shot clock’ allowing builders to expect a certain time frame for their city permits and put those additional personnel out there in the streets to monitor and if necessary, place a stop on any home construction that will cause damage to the existing homes built next to the new construction. The city council can direct the city manager and city attorney to do all this. The council are not puppets sitting up there with the developers pulling all the strings.
Me says
City of PC doesn’t seem to have qualified engineers to know that building like this would cause flooding. City of PC will build anything anywhere with no rhime or reason. It is very poor planning on their part and this is the results with the property owner left hanging the bag. If it were me I would be hring a real good attorney.
Laurel says
It would be cheaper, and more successful, to build a concrete wall next to the offending property and hiring a drainage expert to put in a drainage system on your property.
palmcoaster says
Are you kidding?
Laurel says
Actually, no. Good luck with lawyers, no one here has broken the law. That’s a tough battle, and could be a very expensive one.
Now in Delray Beach, many residents got together and managed to get all the finger canals dredged on the taxpayer’s dime, whether the taxpayers lived on the water or inland with no connection to the canals. That’s a pretty rare scenario as it didn’t benefit the general public. Made a lot of folks unhappy. You’re gonna be pretty hard pressed to get the city to take the taxpayers dime to fix individual’s yards. Not impossible, but close to it.
Hubby and I are very proactive. We would do what we could to end the situation, while keeping in touch with other residents, and try to recoup the expense later. Meanwhile, we would not hold our breaths.
A friend of ours, up north, had trouble with her basement flooding. She brought in a drainage expert, and he installed a small system that has been working. The price was reasonable.
All I’m saying is don’t spend too much of your valuable time angry and fighting. Determine the worth, and do what you need to do to stay happy. You are in an area that has a high water table, with trees that soak up water removed, more impervious areas, and insurance company generated requirements.
We’ll see what happens, and I wish all involved the best.
john stove says
Personally I would document in writing my communications with the city and all its technical staff as to the problem. I would then take pictures and video tape of dry and wet weather to show the flooding. I would get a copy of the building permit of the new house which shows the elevation of the new house.
I would then advise the city, the new homeowners and my insurance company that I was experiencing flooding due to the new construction and put the liability on the city to protect me as I never had a flooding problem before. Your Insurance company will seek to be reimbursed by the city or the new homeowners if you file a claim.
Lastly, I would install a small interceptor trench between my lot and the new lot and install a pond type sump pump to drain this trench and discharge it back onto the new homes property……then things will get interesting but if you have all of your documentation you will be successful in a lawsuit.
Been there done that