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Storm water run-off is a condition that can create serious “neighbor wars” when changes occur unexpectedly. Personal animosity arises quickly when one neighbor’s development, or renovation of its property, creates new or increased flow of surface water that damages its neighbor’s property. Years ago, I recall two neighbors on our street in Bethesda, Maryland. One neighbor constructed a brick wall along its property which caused frequent and serious flooding of the other neighbor’s basement and a long term conflict was created. The end result of these conflicts is often litigation and undying resentments that last for years. Yet these types of disputes are perfect candidates for collaborative dispute resolution using mediation. This article discusses the nature of storm water disputes using recent examples, and how to focus on a mediation process that looks for a reasonable, technical solution.
The Science of Storm Water Flow The image below shows the differences in the surface runoff of storm water in the before and after construction conditions. The diagram on the left shows the conditions before construction. Trees, ground vegetation and natural soil conditions are able to absorb a great deal of a storm’s water and surface runoff is minimized. After construction shown on the right, when buildings and paved surfaces are introduced, the absorption capacity of the land is greatly reduced. As a result surface water run-off increases after construction along with the potential for increased flooding of downstream properties and the saturation of the remaining natural surfaces.
These conditions, created by development and the resulting change in water flow and absorption patterns, cause surface flows to increase potentially creating problems for downstream neighbors. If appropriate structures are incorporated into projects, such as channels, retention basins, absorption areas and culverts, these impacts can be mitigated or eliminated. Green building techniques are intended to mitigate these problems. Proper engineering as well as storm water management plans required by local and state governments are intended to eliminate the problems associated with creating the built environment. However this can be a somewhat imprecise science. In addition the nature of storm conditions has also been changing over the years, be it from the effects of global climate change or simply naturally recurring peaks in weather cycles.
The Case of the Farmers versus the Subdivision - One recent experience involved farmers and an adjacent residential development in a county in Pennsylvania. The development had an approved storm water management plan and had completed about half of the planned build-out and also put in some of the temporary structures to control storm water run-off. The framers alleged an immediate effect on their properties from increased run-off but felt they were unable to get anyone to listen. After years of frustration and attempts to seek help from the county government and the developer, the farmers finally sued the home owners’ association and the developer for damages caused to their farms.
The development had allegedly increased the water flow onto the adjacent farms, even though the water management plan was approved by the county and showed no change in run-off. The farmers experienced erosion, increased mud patches as well as the formation of potential new “wetlands”. One major concern was that endangered turtles would inhabit the new conditions, which would dramatically change the land use requirements on the farms.
After the law suit was filed, the case proceeded through more than a year of discovery and pre-trial posturing at the expense of all parties involved. The home owners association and developer’s insurance companies’ legal counsel got involved in the defense, which ended up helping in the resolution. When the judge in the case finally ordered all parties involved to take time-out for 60 days and try to mediation, everyone was ready to look for a solution. Even though there was some skepticism about whether the case would get resolved there was fortunately an openness and willingness to try the process.
Collaboration to find a Technical Solution - The farmers’ lawyer recognized what his clients’ wanted most was a technical solution that worked. Their properties continued to experience the damage of increases in water flow. The lawsuit would take longer to get to trial, while resources were being spent on the legal process rather than a solution. The lawyers sought a mediator who also had a technical understanding of the problem. I was selected because, in addition to being a mediator and a lawyer, I was a licensed engineer. Among other things my background included 5 years as an officer in the U.S Army Corps of Engineers where we were taught about engineering for storm water run-off as well as drainage structures.
In order to mediate a technical solution, both sides were encouraged to use their own technical experts for advice on the nature of the problem as well as a solution. Prior to the mediation all sides’ technical experts exchanged their analysis and technical solutions. Conference calls were held with all sides both together and also separately to insure a clear understanding of each side’s position and interests. The farmers’ expert recommended putting a ¼ mile drainage pipe under a paved road to discharge in the creek downstream at a cost of several hundred thousand dollars. The home owners and developer’s expert naturally had a lower cost solution in the tens of thousands of dollars, involving completing the designed structures and adding some minor upgrades.
The Mediation Session – My approach and practice in these type disputes is to start the mediation with a joint session with everyone on the same room, which in this case lasted about 2 hours. This allowed each side to present their position and have a chance to rebut the other side, thus “being heard” which is a critical component in resolving disputes. There was a critical acknowledgement in the joint session by all, that temporary structures had not been put in final form, since all the housing units had not been completed. It was further acknowledged that this fact contributed to an increase in flow conditions.
However there was no agreement at the outset of the mediation on how to fix the problem. The developer’s expert recommended a simple solution involving completing the drainage structures that were designed for the development site when the project had been completely built out. In addition they offered to add in a few upgrades the cost of their solution was only about 1/10th the price of the other side's design. The farmers totally lacked confidence in the as-designed plan. Their expert recommended completely rerouting the storm water by putting a ¼ mile drainage pipe under a paved road discharge directly in the creek downstream, at a cost of several hundred thousand dollars.
The final phase of the mediation included caucusing with each side separately. For this case this phase lasted about 4 hours with the mediator encouraging proposals and shuttling back and forth. The two initial solutions were pretty far apart. After much back and forth, the mediator identified an intermediate solution that no one had focused on. It involved burying a drainage pipe through the farmers’ property exactly where the water was running. The benefits to this mediated technical solution were multiple:
The concept from the mediator was presented independently to each side and tested in private. Neither side wanted it to be considered their idea (which it wasn’t) until they received the other side’s reaction. In addition these farmers had owned the farms for generations and felt before agreeing to any such changes on their property, they would have to get approval from their adult children who lived in other states. This family approval was obtained and everyone tested the solution, before all parties finally accepted the solution and settled the case.
Lessons Learned - There are several reason why this matter settled through the mediation process. First, there are many times a dispute needs a gentle (or not so gentle) shove towards a different way to resolve the dispute. Thanks to the court’s directive at an appropriate time in the case, the parties & lawyers although skeptical, moved forward to mediation. Secondly the technical experts were hired to find technical solutions, and not to testify at trial. Thus they were much more open to factual agreements and creative thinking. When experts are hired to testify in trial they become necessarily very opinionated and adversarial, since that is what they are being paid to do. In this case their assignment was to find a mutually agreeable solution.
Finally, although a mediator’s skills are often much more important than the mediator’s subject matter knowledge, this case was different. When coming to agreement on the technical solution was the predominant interest, the mediator’s technical background was critical and related directly to the substance of the dispute. I know for a fact, I was not as knowledgeable as any of the other engineers involved. There also may have been flaws in my suggested solution but fortunately it held up. In the end sitting in a neutral corner gives one a much different view of the problem and solution, and the ability to see things other can’t because of their conflict.
Chris Kane P.E. J.D. is a professional engineer, lawyer and mediator and based in Princeton, New Jersey. He has over 30 years of experience in the construction and environmental industry and nearly 20 years of experience as a mediator participating in all methods of dispute resolution. Chris is currently Vice President Senior Counsel in AECOM an international engineering and construction company. He is on the NJ Courts CDR Panel of Mediators and has been a mediator and arbitrator for the American Arbitration Association since 1994.
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