Argued December 11, 2013.
[Copyrighted Material Omitted]
Appealed from No. 2001-05990-25. Common Pleas Court of the County of Bucks. Waite, J.
Martin J. King, New Hope, for appellant.
Sharon F. Harvey, Paoli, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
PATRICIA A. McCULLOUGH, Judge.
Mary Bretz (Landowner) appeals from the May 25, 2012 order of the Court of Common Pleas of Bucks County (trial court) denying her request for injunctive relief and entering judgment in favor of the Central Bucks School District (District). For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand to the trial court for a new decision.
Landowner purchased the 31-acre property (Property), historically designated Datestone Farm, in 1982, and she resides there with her husband and children. The Property is downstream from and adjacent to the District's 66-acre property containing the Central Bucks High School East and the Holicong Middle School. The District's property borders both Holicong and Anderson Roads.
In September 2001, Landowner filed a complaint in equity, alleging that the expansion of the high school in 1997-98 and the expansion of the middle school in 1998-99, including the construction of a detention basin adjacent to the Property, caused an increase in the volume and duration of stormwater discharge onto the Property and resulted in long-term and continuous damage. Landowner averred that the continuing trespass carries away stone and soil, erodes land around and beneath trees, threatens septic fields and electrical transformers, and renders land wet and muddy, exceeding what would occur but for the artificial conditions created by the District. Asserting that she has no adequate remedy at law, Landowner seeks a decree that: enjoins the further trespass by the increased duration and/or volume of stormwater discharge; requires the District to redesign and implement stormwater management in order to reduce stormwater discharge to conditions existing pre-construction;
and awards damages for trespass and expenses incurred for remediating the effects of the unlawful discharge onto Landowner's Property.
The trial court held a hearing on Landowner's complaint from April 26 to April 28, 2010. At that time, Landowner was appealing the District's planned projects for the construction of a high school stadium and science wing. Jeffrey Bretz, Landowner's husband, described the changes he observed on the Property following the high school and middle school expansions. He stated that initially, the Property had a natural, gentle, 60-foot swale below a District soccer field and an 8-inch discharge pipe buried in riprap on or abutting the property line. Bretz testified that the broad swale was reduced from 60 feet to 10 feet after the District's construction of a detention basin and installation of a 36-inch pipe. Bretz further testified that the District installed a berm around the detention basin that was 15-feet high, when evaluated from the base of the Property, and that the surface water collected inside the berm is approximately 5-feet high. According to Bretz, the detention basin, berm, and 36-inch pipe operated to decrease the rate of surface water flow onto the Property, but the duration of the flow was increased substantially (for example, from 1 day to 4 or 5 days); as a result, water accumulated in and extended to new areas of the Property, including a stand of trees. Bretz submitted photographs reflecting clay soil, downed trees, and areas of erosion caused by outfall from the discharge pipe, and he stated that trees on either side of that area do not suffer. (R.R. at 23a-42a.)
At the hearing, both parties presented expert testimony concerning the stormwater management undertaken during the District's construction. Much of the testimony concerned whether the District violated the applicable subdivision and land development ordinance (SALDO). The first relevant provision is section 9.23A(4) of the SALDO (emphasis added), which states:
The developer shall construct and/or install stormwater management facilities, on- and off-site, as necessary to: Convey stormwater along or through the property to a natural outfall. If a developer concentrates dispersed stormwater flow or redirects stormwater flow to exit at another location on the property, the developer is responsible for constructing an adequate channel on the adjacent property and on all downstream properties until a natural outfall is reached.
Also, section 9.23B(2) of the SALDO (emphasis added) states in part:
The existing points and patterns of natural drainage discharge onto adjacent property shall not be altered without the written approval of the affected landowners.
Finally, section 9.23B(3) of the SALDO (emphasis added) states:
No stormwater runoff or natural drainage shall be so diverted as to overload existing drainage systems, or create flooding or the need for additional drainage structures on other private properties or public lands.
Landowner presented the expert testimony of Peter C. Andersen (Andersen), a registered professional engineer. Andersen reviewed photographs and other exhibits reflecting a defined channel on the Property that was coincidental with discharge from the detention basin and did not appear on 1996 records or ...