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United States v. Board of Hamilton County Commissioners

United States District Court, S.D. Ohio, Western Division

December 2, 2019

UNITED STATES OF AMERICA, et al,, Plaintiffs,
v.
BOARD OF HAMILTON COUNTY COMMISSIONERS, et al., Defendants.

          Barrett, J.

          ORDER RE: REQUEST FOR REVIEW BY CLAUDETTE DAVIS

          KAREN L. LITKOVITZ, MAGISTRATE JUDGE.

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by Claudette Davis (Doc. 1777), her supplementation to the Request for Review (Doc. 1800), and the response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 1801). Ms. Davis requests review of MSD's decision on her SBU claim without a hearing. (Doc. 1777 at 2).

         Ms. Davis's request for review is filed under the Sewer Back Up[1] program (formerly known as the Water-in-Basement [WIB] Claims Process Plan) (Doc. 131, Consent Decree, Exhibit 8). The Consent Decree in this case establishes a framework for ensuring that MSD addresses capacity and pollution problems with its sewer system. This framework includes a Sewer Back Up program under which MSD must "take measures to prevent back-ups of the sewer system into residences in Hamilton County, to clean up back-ups when they occur[], and to reimburse residents for damages." (Doc. 454 at 2, citing Doc. 131). The instant matter before the Court involves two SBU programs: the Prevention Program and the Claims Program.[2]

         The SBU Prevention Program is designed to prevent the occurrence of building backups. Subject to the requirements of the Prevention Program, certain property owners who experience wastewater backups into their buildings due to inadequate capacity in MSD's Sewer System (both the combined and the sanitary portions) are eligible to have systems or devices installed on their property to prevent future wastewater backups. These preventive systems or devices are installed at no cost to eligible property owners who meet the Prevention Program requirements. The Prevention Program is not intended to address water in buildings caused by: 1) overland flooding not emanating from MSD's Sewer System; or 2) blockages in lateral or public sewer lines. (Doc. 131, Ex. 6 at 1). Under the Prevention Program, MSD utilizes a variety of remedial measures to address SBU, including the installation of backfiow preventers and pumping systems on private property.

         The Claims Process Plan states in relevant part:

Subject to the requirements of this Plan, occupants who incur damages as a result of the backup of wastewater into buildings due to inadequate capacity in MSD's Sewer System (both the combined and the sanitary portions) can recover those damages. This plan also provides a means for occupants to recover damages arising from backups that are the result of MSD's negligent maintenance, destruction, operation or upkeep of the Sewer System. The Claims Process is not intended to address water in buildings caused by overland flooding not emanating from MSD's Sewer System or caused by blockages in occupants' own lateral sewer lines.

(Doc. 131, Consent Decree, Exhibit 8 at 1). In determining the cause of SBU, MSD must exercise its good faith reasonable engineering judgment and consider the following nonexclusive factors: amount of precipitation, property SBU history, condition of the sewer system in the neighborhood, results of a visual inspection of the neighborhood to look for signs of overland flooding, neighborhood SBU history, capacity of nearby public sewer lines, and topography. (Doc. 131, Consent Decree, Ex. 8 at 2). Damages arising from basement backups for which MSD is responsible are limited to documented real and personal property. Id. Homeowners who are dissatisfied with MSD's disposition of a claim under the SBU program may request review of the decision by the Magistrate Judge, whose decision is binding and not subject to any further judicial review. (Docs. 154, 190).

         I. Background

         Ms. Davis is the owner of the property located at 3017 Westknolls Lane, Cincinnati, Ohio. On July 24, 2019, Ms. Davis filed an SBU claim with MSD seeking compensation for property damage allegedly resulting from a sewer backup on July 18, 2019. (Doc. 1801, Ex. F). MSD denied the claim for property loss, finding the damage was not caused by a failure of MSD's sewer system. (Doc. 1801, Ex. G). Ms. Davis disagreed with MSD's decision and filed a request for review in this Court.

         II. Evidence

         In her request for review, Ms. Davis states that her house has been flooding since 2003, and she has had over 18 floods in her home "due to the sewer back up problem with the City MSD." (Doc. 1777 at 4). She states that she permitted MSD to install two pumps on her property, one in her garage and one in her front yard, but her property continues to flood. Ms. Davis states that on July 18, 2019, her house had a sewer backup. She contacted MSD, which sent someone to check the pumps, and she was advised that the pumps are not large enough to handle heavy rains. Ms. Davis states that MSD has told her this before when workers have come out to her property. Ms. Davis states that her house has a sloped driveway, and water from the 20 other houses up the street enters the driveway from the street. She states that MSD made an appointment to install a larger pump on her property after she submitted her SBU claim, but MSD nonetheless denied her claim because the pumps on her property were in working order. Ms. Davis believes the issue is not whether the pumps are operational but whether the pumps installed on her property are large enough to accommodate the anticipated water flow. Ms. Davis states she has been forced to move out of her house because of the black mold in the lower level of her home. (Doc. 1777 at 4).

         MSD presents evidence that Ms. Davis's property sits at the bottom of a large hill and has a recessed driveway with a garage entrance below street level. (Doc. 1801, Exs. C, D). As situated, Ms. Davis's property naturally receives a large amount of surface water runoff from higher elevations during wet weather events. In addition, at the base of the recessed driveway and immediately in front of the garage door is a storm water drain, which was likely installed by the original home builder. In order for the driveway drain to function effectively, storm water would have to pour into the drain faster than the rate at which it could flow under the garage door.

         Prior to 2008, the rain gutter downspouts on Ms. Davis's property were tied into the home's private lateral line which, at the time, was a combined line that conveyed both sanitary and storm water. MSD states that during heavy rainstorms, storm water inundated Ms. Davis's property and the lower level would flood given the property's low-lying location, the unique surrounding ...


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