Keating, O’Gara attorney Gary J. Nedved’s latest court victory was featured prominently in this week’s Sunday Journal Star:
Lost flood map could cost city millions
By CLARENCE MABIN / Lincoln Journal Star
Sunday, Oct 21, 2007 - 12:06:30 am CDT
For Brad and Jennifer Sheaff, it once was the home of their dreams.
A spacious, four-bedroom, ranch in the peaceful, secluded Cardwell Woods subdivision, where many of the houses top $500,000 in value. What more could a couple with two young children want?
“You can walk into a house and say, ‘This just feels right,’” said Jennifer Sheaff. “Well, that’s the way it was for us. It just felt right. It was our dream house.” .
But no more.
For the Sheaffs, who bought a one-acre lot eight years ago, and at least two other couples in the development near a tributary of the Cardwell Branch Stream, the dream was shattered in May 2005.
That’s when government officials told the families at a meeting that their homes were in a flood plain.
“I was furious,” recalled Troy Stonacek, a neighbor who also attended the meeting.
The lowest floor of his home, he learned later, was some seven feet below the flood level. Only the top floor and garage were above it.
“I was thinking there was no way this could be happening,” Stonacek said. “We would not have built here had we known about a flood plain.”
The revelation prompted the Stonaceks, the Sheaffs and George and Lori Bristol to sue the city in Lancaster County District Court.
After a bench trial last summer, Lancaster County District Judge Steven Burns ruled last month that the city was negligent for not informing the families about the flood plain when it issued building permits.
A two-day trial before Burns is set to begin in January to determine monetary damages.
If the homeowners get all they want — the replacement value of their houses — damages could easily top $1 million.
“I don’t think I’m too far off to say my home is worth basically zero,” said George Bristol.
“Who would buy a home in a flood plain? And even if you could find such a person, no lending institution would give them the money.”
City Attorney Dana Roper declined comment last week because of the pending damages trial.
The families’ attorney, Gary Nedved of Lincoln, said officials at the May 2005 meeting included representatives from the state Department of Natural Resources and the city of Lincoln.
“That was the first time my clients learned they were below the flood plain,” he said. “We believe there’s been a significant devaluation of their homes.”
Nedved argued — and Burns, in his September written judgment, agreed — that the city knew well before 2005, indeed before the families purchased the lots, that the area was in a flood plain.
A state Natural Resources study of the area, completed and submitted to the city in January 1997, showed a flood-elevation level of 1,208 feet, Burns wrote.
Nedved said the level is some seven feet higher than the estimated flood elevation for the area described in an older Federal Emergency Management Agency map used by the city’s Building and Safety office.
He said trial testimony showed city employees put the Natural Resources map in the Cardwell Woods file at the Building and Safety office.
Nevertheless, Nedved said, when the families received building permits from the office — between 1998 and 2003, according to Burns’ written judgment — each was given a flood plain elevation based on the older, and inaccurate, FEMA map.
Nedved did not claim at trial that Building and Safety employees intentionally misled the families. Rather, he said, the Natural Resources map had somehow gotten lost at the office.
“I can’t speculate,” he said. “I can say it was lost. I can’t say who lost it, or how.”
At trial, the city argued — among other things — that it had no legal obligation to the families. It also contended it was immune from the claims because whether or not its employees disclosed the Natural Resources map to the plaintiffs was a “discretionary act” and, thus, protected by tort law.
Burns rejected both arguments.
He said the city’s own ordinances require the Building and Safety office to get flood plain information from the state Natural Resources Department and “reasonably utilize” the data.
And, he said, the city presented no evidence that nondisclosure of the Natural Resources data was a discretionary act.
“There is simply no evidence to suggest there was any policy decision made in this regard,” he wrote. “Quite the contrary is true.
“At some point the (Natural Resources) Map was removed from the Cardwell Woods Subdivision file,” he continued, “but no one in the Building and Safety Department of the City has been able to explain where it went or why it was removed.”
Burns also dismissed the city’s assertion that the statute of limitations barred the plaintiffs’ claim.
He said the clock started to tick in December 2004, when the U.S. Geological Survey began remapping the area. The plaintiffs had to file suit within two years of the date, and they did, Burns wrote.
Stonacek said the statute of limitations will probably keep others in the area from filing similar lawsuits. The flood plain contains the seven houses — including the homes of the three plaintiff families — in the Bobcat Circle cul-de-sac, one of four that make up Cardwell Woods.
According to Stonacek, at least one other area resident — not a Bobcat Circle homeowner — is considering a lawsuit arguing a diminished property value because of the city’s negligence. That resident could not be reached for comment.
For Stonacek and the other plaintiffs, the flood plain poses a grim reality.
“It means there’s a 95 percent chance of being flooding out over the life of a 30-year mortgage,” said Stonacek, who, like George Bristol, has all but immersed himself in the science of hydrology in the past couple of years.
“It’s been frustrating dealing with the city,” said Stonacek, who valued his home at about $600,000. “It leaves a real sour taste in our mouths.”
On May 5 of this year, the families got a taste of how bad things could get.
A little more than three inches of rain fell in about an hour, leaving four inches of muddy water in the Bristols’ basement and a pond some 40 inches deep at the family’s patio door, he said.
“Short of spending millions and millions of dollars to build a levee, which the city is not going to do, the only way to help us out is to get us out of the flood plain,” said George Bristol, who said he paid $317,000 for his home in 2003.
Brad Sheaff said the city’s mishandling of the flood plain maps has made him a skeptic.
He said the Lancaster County assessor’s office recently appraised his house at about $509,605. Sheaf said he protested the valuation and his home was revalued at $430,330. But, he said, it would cost more than even the higher value to build the same home elsewhere.
“I’m concerned about the integrity of the city,” Sheaff said. “The city provided us with information about the flood plain. It turned out to be wrong.”
Sheaff’s home escaped damage from the May 5 rain, but he worried he might not be so fortunate next time.
“This is our house, our dream home,” he said. “We trusted the city, and we were wrong to do so.”
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