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<br />W. JOSEPH SHOEMAKER
<br />I ROBERT 5. WHA""
<br />EpW....RD J. KR1S0R, JR.
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<br />RICMARD H. HtL.1.
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<br />APPENDIX A
<br />
<br />LEGAL OPINION
<br />
<br />SnOEMAKEJl. A.ND """HAM:
<br />AnORNE"JB AT LAW
<br />1421 COURT pl.ACE BUILDING
<br />DENVER. OOLORADO 80202
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<br />A-I
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<br />303_S34-e38e
<br />
<br />Mr. Be~ Urbonas, P.E.
<br />February 20, 1979
<br />Page Two
<br />
<br />February 20, 1979
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<br />small ditch, will be overtopped, resulting in (a) surface water
<br />entering a ~ajor Denver Water Board drinking water facility and
<br />(b) the Marston Shores Condominiums. Further downstream, the
<br />Denver Water Board Treatment facilities will receive the impact
<br />of these additional surface waters. Pinehurst Country Club homes
<br />and the Ft. Logan Cemetary lie further downstream.
<br />
<br />Mr. Ben Urbonas, P.E.
<br />Urban Drainage and Flood
<br />Control District
<br />2480 West 26th Avenue/Suite
<br />Denver, Colorado 80211
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<br />156B
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<br />ISSUES: There are several legal issues relating to this
<br />Basin: future development, detention or lack of it, potential
<br />damages, and drainage design alternatives.
<br />
<br />Re:
<br />
<br />Marston Lake North
<br />Phase A Report
<br />
<br />1. Future development. Colorado drainage law generally
<br />follows the "modified civil law" or "doctrine of reasonableness".
<br />In other words, natural drainage conditi~ns may be altered by an
<br />upper owner provided the water is not sent down in a manner or
<br />quantity to do more harm than formerly. Hankins vs. Borland, 163
<br />Colo. 575, 431 P.2d 1007(1967). A State statute requires developers
<br />in unincorporated areas to detain greater than historical flows.
<br />(1973 C.R.S. ~30-28-133(4)(b)) Here, the upper basin.developers are
<br />within the City and County of Denver (incorporated area) and subject.
<br />to whatever land~userestrictioDs the City requires in this regard.
<br />However if Denver or any city permits unrestricted development
<br />. ' .
<br />and ~t can be proved that such development was a prox~mate cause
<br />of the "more harm than formerly" downstream, then the City, as
<br />well as the private developers, may be held liable. See the results
<br />of Masley vs. City of Lorain, 48 Ohio St. 2d 334, 358 N.E. 2d 596
<br />(1976); Myotte vs. Village of Mayfield, 54 Ohio App. 2d 97, 375 N.E.
<br />2d 816(1977); Powers, et. ale v$. County of Clark and Clark County
<br />Flood Control District, 8th Dist. (Nevada, 1978); ~reiner vs. C & P
<br />Home Builders, Inc. and Borough of Alburtis, 398 F. Supp. 250(1975),
<br />but reversed as to the Borough and its engineers in 536 F.2d 27(1976).
<br />
<br />Dear Ben:
<br />
<br />You asked me to review the above Phase A Report and render
<br />a legal opinion on the alternative presented by Camp, Dresser
<br />and McKee, Inc. My review of this Phase A Report was made in
<br />conjunction with my on-site inspection of the drainage basin in
<br />February, 1979.
<br />
<br />The PROBLEM: This basin, like the majority of basins within
<br />the Urban Drainage and Flood Control District, is developing into
<br />a potential flood hazard downstream because of additional run-off
<br />from projected future development upstream. The Phase A Report,
<br />Figure 4, estimates, under a IOO year flood condition, that 1190
<br />c.f.s. will reach the Marston Lake area from the upper developed
<br />areas of the basin. This is an increase of 620 c.f.s. from what
<br />would naturally flow. Presumably, this is the result of no up-
<br />stream designed detention and no undesigned detention at Colorado
<br />121 and/or ~ld Wadsworth Boulevard. In other words, with the
<br />basin fully developed as presently zoned, and with culverts
<br />under the highways adequate to pass the 100-year or 10-year floods,
<br />the above set forth additional c.f.s. will arrive at the northwest
<br />corner of Marston Lake. The current "channel", which is a very
<br />
<br />2. Detention, or lack of i~. The basis of 1973 C.R.S. ~30-28-
<br />l33(4)(b) is that anyone who changes the use of his land from agri-
<br />cultural or undeveloped to developed, will be altering natural drainage
<br />conditions, which will probably be sending the water down in a
<br />manner or quantity to do more harm than formerly. Therefore, in
<br />unincorporated areas, such a developer is required to detain this
<br />excess water. If Denver, as an incorporated city, does not choose
<br />to follow this statute, then it must follow some other accepted
<br />solution. Alternative 2, suggested by the Report, is one such
<br />solution. In lieu of detaining the additional water, paying for
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