11-10-1997 Council Packet - Laserfiche WebLink

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First, the Supreme Court held that a city which elects to obtain liabilitv* insurance waives its immunity. However, the mere waiver of immunity and the fact that an accident occurs does not establish liability. The Supreme Court held that the plaintiff had failed to show what action or inaction constituted negligence on the part of the city. The Supreme Court further held that the city had no duty to improve this natural drainage system and the fact that a ten-year rain event occurred one day was not the result of the city’s negligence. However, the Supreme Court did state in the Shabot case that had the plaintiff prov^ that the city had approved the number of building permits in the immediate vicinity of the Chabot home which added additional run-off of water into the holding pond and that if he had shown by expert testimony that these permits increased the risk of damage to the plaintiff s home other than vague and general references to the growth in the water shed area that this would have shown negligence.” The court also stated “a city can be liable for trespass or nuisance caused by such an increased flow of water or by a change in the flow of water which affected its normal and natural flow.” The fact of the matter of our situation is that the Chy of Orono approved six building permits for homes and a garage to be built along the slope of Tonkaview Lane which runs directly into Wildhurst Trail and County Road 19. Variances (#2323, 3519 & 3272) were graiited to three of these homeowners specifically for substandard lot area, thus increasing the ratio of hardcover to total lot area. Also, in variance #3519 (4620 Tonkaview Lane) the homeowner was instructed by the Orono Planning Commission to make sure that “roof drainage be directed away from the north and east sides of the resident and directed to the road.” (Tonkaview Lane). Variance # 2323 (4625 Tonkaview Lane) was also granted with the condition that a grading plan be submitted for City review and ^proval prior to construction of the driveway access to Tonkaview Lane. Furthermore, we have secured the expert opinion and a report by a hydrologist, Ted Mattke, Ph.D., P.E., which concludes that the 6 new structures did increase the run-oflf substantially, causing damage to our homes. Thus, upon close examination, the Chabot case actually supports our claim for damages. We have lived in our home for over 10 years. In the first year of residence, we experienced a 100 year rainstorm event which provided over 10 inches of rain. Neither the Bes^sen s nor our home was damaged. Since those homes on Tonkaview Lane have been built, we have been in terror of a 2-3 inch rainstorm. Such a rainstorm has caused water to flow aga^t our fi-ont door, to a height of 5 to 10 inches, depending on the intensity of the rainfall. This water came fi’om Tonkaview Lane which is not a natural causeway for water. The flowage from Tonkaview Lane crossed Wildhurst Trail and then directly entered onto the shoulder and drainage ditch of County Road 19 and down our driveway, the Bessessen’s driveway and down the ravine between our home and the Bessesen’s home, causing water damage to both homes. We have been dealing with the insurance company (LMCIT) on this liability issue for over a year. Mr. Schroeder has failed to return phone calls for weeks on end. Now