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Lincoln Investors, L.P. v. King

Commonwealth Court of Pennsylvania

December 22, 2016

Lincoln Investors, L.P., Lincoln Court, Inc., Appellants
v.
Frank. A. King, Jr. and Glenn A. King, Co-Executors of the Estate of Frank King; Lizelton, Inc.; Sam and Sal Associates; William J. Mangan; Liberty Square Condominium Association of Chester County; RFP Properties, Inc.; 271, L.P.; East Whiteland Township; County of Chester, PA; Pennsylvania Department of Environmental Protection; Pennsylvania Department of Transportation; F.W. Houder, Inc.; Peter Krasas, Jr. and Associates, Inc.; Edward A. Walsh and Associates, Inc., Pancoast Clifford, Inc.; Pickering Valley Contractors, Inc.; and Lyons and Hohl

          Argued: October 20, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         This Court has granted Lincoln Investors, L.P. and Lincoln Court, Inc. (collectively "Lincoln") permission to appeal an interlocutory order of the Court of Common Pleas of Chester County (trial court), which granted partial summary judgment in favor of fifteen defendants[1] (collectively "Defendants") as to claims brought under the Storm Water Management Act (Act).[2] The trial court held that Defendants, consisting of surrounding property owners as well as state and local government entities, could not be held liable under Section 13 of the Act for flooding incidents that occurred before 2011, when Chester County adopted a watershed storm water plan. Lincoln argues that the trial court erred in its construction of the enforcement provisions of the Act, and this Court allowed Lincoln's appeal to consider this question.

         Background

         Lincoln owns and operates a shopping center located on a 23-acre parcel in East Whiteland Township in Chester County, Pennsylvania that it has owned since 1987. The shopping center first experienced flooding with Hurricane Floyd in 1999. It experienced flooding again in 2003. From 2003 through 2011, flooding at the shopping center was sporadic. In 2011, Lincoln's shopping center experienced two flooding incidents. Lincoln contends that over time, the instances of flooding have increased in frequency and intensity.

         To address this flooding, Lincoln engaged an engineer to determine the source of the problem and offer a solution. In January 2012, the engineer advised Lincoln that the flooding was caused by the inadequate underground storm water management systems on surrounding properties. Lincoln filed suit in June 2012.

         Lincoln filed an action against all Defendants alleging, inter alia, violations of Section 13 of the Act, for which it sought damages under Section 15(c) of the Act. 32 P.S. §§680.13, 680.15(c).[3] The trial court granted summary judgment in favor of Defendants on Lincoln's Section 13 claim that related to pre-2011 flooding incidents. The trial court construed Section 13 to establish a mechanism for ensuring compliance with a county's adoption of a "watershed storm water plan" under Section 4 of the Act, 32 P.S. §680.4. Accordingly, unless and until the county adopts a watershed storm water plan, a landowner cannot violate Section 13. Because Chester County adopted a watershed storm water plan in February 2011, the trial court held that Lincoln could pursue a Section 13 enforcement action as of February 2011.[4]

         Lincoln petitioned for amendment of the trial court's order to certify it for interlocutory appeal[5] of the question of whether a watershed storm water plan is required before an action may be brought under Section 13 of the Act. The trial court granted the petition, and on January 8, 2016, this Court granted Lincoln's petition for permission to appeal the trial court's judgment on the Section 13 claim.[6] The matter is now ready for disposition.[7]

         Analysis

         The Storm Water Management Act was enacted in 1978 to manage the effects of storm water runoff. Specifically, the General Assembly expressly identified the purposes of the Act as follows:

(1) Encourage planning and management of storm water runoff in each watershed which is consistent with sound water and land use practices.
(2) Authorize a comprehensive program of storm water management designated to preserve and restore the flood carrying capacity of Commonwealth streams; to preserve to the maximum extent practicable natural storm water runoff regimes and natural course, current and cross- section of water of the Commonwealth; and to protect and conserve ground waters and ground-water recharge areas.
(3) Encourage local administration and management of storm water consistent with the Commonwealth's duty as trustee of natural resources and the people's constitutional right to the preservation of natural, economic, scenic, aesthetic, recreational and historic values of the environment.

Section 3 of the Act, 32 P.S. §680.3.

         To advance the statutory goal of managing storm water runoff, Section 5 of the Act requires each county to prepare and adopt a watershed storm water plan for each existing watershed. [8] 32 P.S. §680.5. Section 5 gave counties two years following the promulgation of certain guidelines by the Department of Environmental Protection (Department) to adopt these plans. On May 14, 1985, the Department promulgated its Storm Water Management Guidelines (Guidelines), which triggered the counties' responsibility to adopt a watershed storm water plan.

         In spite of the Section 5 timetable, Chester County did not adopt a watershed storm water plan for the Valley Creek Watershed, where Lincoln's shopping center is located, until February of 2011. Lincoln argues that liability can be imposed under the Act despite the County's delay in adopting a watershed storm water plan. Defendants respond that the existence of a county-adopted watershed storm water plan is a prerequisite for liability under Section 13.

         Section 15 of the Act creates civil remedies to enforce the provisions of the Act. It states as follows:

         Civil remedies.

(a) Any activity conducted in violation of the provisions of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, is hereby declared a public nuisance.
(b) Suits to restrain, prevent or abate violation of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, may be instituted in equity or at law by the department, any affected county or municipality, or any aggrieved person. Except in cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be recoverable from the violator in such manner as may now or hereafter be provided by law.
(c) Any person injured by conduct which violates the provisions of section 13 may, in addition to any other remedy provided under this act, recover damages caused by such violation ...

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