FLOOD02983 - Laserfiche WebLink

Home Browse Search

I I I I I I I I I I I I I I I I I I I SUOEMAKEH AX]) ,,'HAM ATTOHNEY"" AT LAW ..21 COUR,. P....A.Cl: eUI...O'''''-' "" .,O~[5->" '.,..(:"'t ....~[;:: JI'~A'~' 5 ......... C:...""...RC' J. "r::/ ~CR._R DE~.'Vr;II:. COI.ORA.DO 80~O~ Mr. Ben Urbonas, P.E. Page Two December 14, 1977 303-534-8386 RrC"''''''D lot. H'...:" December 14, 1977 Mr. Ben Urbonas, P.E. Urban Drainage and Flood Control District 2480 West 26th Avenue, Suite 156-B Denver, Colorado 80211 Drainage law also generally follows the concept that nature should be allowed to take its own course, and the natural watercourses developed over the years are the best way to carry off surface waters. In Hankins vs. Borland, 163 Colo. 575, 431 P.2d 1007, 1010 (1967), the Colorado Supreme Court stated: Re: Lee Gulch and Lit "Natural drainage conditions may be altered by an upper proprietor pro- vided the water is not sent down in a manner or quantity to do more harm than formerly." Dear Ben: W. Joseph Shoemaker has received your let 1977, including the above-referenced report, an that I render a legal opinion as to the recomme in the report. I have read the report in its e viewed the areas in question with you as my gui report, it is meant to be an engineering and pI a particular drainageway in the District, and m in this letter are meant to raise and cover pot and should not be interpreted as being critical as substituting my judgment for yours or KKBNA, Generally, in my opinion, the City of Littleton, the County of Arapahoe, and the District, who are paying for this report, have no obligation to do anything about the dangerous conditions which now exist, except perhaps to call to the attention of the owners and dwellers in the Basin such conditions. Private parties, for the most part, have created the hazardous and potentially hazardous conditions and in the event of loss of life or property such persons damaged would have their recourse against the tort feasors. The reverse is also true. The builder of an "imorovement" to the natural watercourse cannot build such an improvement so as to obstruct the natural passage of the water. Further, once a government has involved itself in the construction of drainage and flood control improvements, it must see that such improvements are maintained. Finally, on a general note, the least that can be accom- plished by local government is to identify and then regulate the use of the flood plain. So long as good engineering practices are followed, a local government should not be liable because a par- ticular parcel of land was not identified as being in the flood plain. 1. General. Although government has no obligation to help solve these man-made problems, if, for various reasons it chooses to do so, which is the prerogative of the legislative bodies of each govern- ment, then it must make certain that such assistance is carried out in a non-negligent manner. I do not believe the law reauires local governments to prevent or even solve drainage and flood control problems. However, if a government chooses to do so, it will be held to the same standard of care as a private party. In reviewing the alternatives discussed in the engi- neer's report and finally the recommended alternatives, I have based my opinions on the legal theory that an alternative is legally acceptable if it does not increase damage from its present level in time, space or amount upstream, downstream, or adjacent to the pro- posed improvement. Of course, each alternative was looked at and legally evaluated individually and in conjunction with the other alternatives in the other reaches covered in the engineer's report. Therefore, if any alternative or any recommended alternative viewed in conjunction with other alternatives proposed to be constructed increases damage from its present level in time, space or amount upstream, downstream, or adjacent to the pro- posed improvements, then that alternative shall be considered legally unacceptable. -A-8-