With regard to the problems with storm water management, the issues that can arise are not limited to cases in which builders have caused downstream damages for recent construction. The recent Forsyth County case in which the homeowners were represented by Don Stack and other lawyers against Pulte Home Corporation involved only one type of case that can result from storm water. There is also a developing problem in Atlanta caused by a lack of expenditures to maintain storm water pipes and detention pond dams that were installed decades ago by developers.
Once a builder and developer finish a community, they transfer their responsibility for maintenance of the community to homeowner associations or governments. In fact, associations were originally created for the express purpose to maintain storm water systems in the wake of the Clean Water Act of 1972. See Homeowner association
. They were not created solely to maintain tennis courts and swimming pools.
Some modern homeowner associations and their directors have repudiated the original purpose for property associations. Some associations focus on the amenities in a community instead of focusing on the nuts and bolts of community maintenance and management. In the wake of the 2009 flooding that exposed the developing problems in Metro Atlanta, the Atlanta Journal and Constitution ran a series of articles regarding storm water problems in the Atlanta area. Among other things, the series of articles highlighted the fact that some associations and boards of directors refuse to accept responsibility for the situations in their communities. This article can be read here
My firm represents both property owner associations and individual members regarding a variety of issues pertaining to property management, including associations' legal responsibility for their storm water problems. We are currently representing individual homeowners, as well as boards of directors of associations. We represent competing interests on both side affecting "mega-associations" with hundreds of lots. Our goal is to advise clients regarding the law and represent their interests where an opposing party or insurer attempts to misrepresent the law. We have multiple land cases on trial and motions calendars currently, and we routinely speak at public meetings before city councils and county boards of commissioners when we are not litigating these issues.
There are arguments to be made for each interest that we represent. When representing homeowners and individual landowners, we emphasize the fact that responsible parties have to face up to the inescapable conclusion that public infrastructure has to be maintained. If governments will not accept that financial responsibility, then it must be borne by entities such as associations that can financially assess their members. In this same vein, individual property owners cannot address the problem. Pipes cross multiple lots, water is generated from streets and catch basins that collect water from all lots. Detention ponds service all lots.
Some associations, such as a local Forsyth County association with hundreds of lots, have tried to argue that each lot owner has to maintain the part of the system on the lot. The problem with this approach is that it literally would lead to a "collapse" of storm water systems. If just one homeowner cannot afford to replace the section of a storm water system component on his or her lot, then the whole system will clog, flooding entire communities, including lot owners who had no role in causing the problem or generating the flood waters. Ultimately though, these issues are not decided on question of fairness - they are decided by the law and the courts where one party of the other refuses to accept responsibility.