HomeMy WebLinkAboutA001 - Legal Opinion dated February 1, 1994 a 4
FEB -
AMES C ITY O F AM g, �---K
C TY CLERK
Ctrr OF AMES IOW
P.O. BOX 811 AMES IOWA 50010
Community-U nivecs ity-Opportu nity
February 1, 1994
The Honorable Larry R. Curtis, Mayor,
and Members of the City Council
of the City of Ames, Iowa
Re: LO: Surface Water Drainage, Northridge Subdivision, Legal Obligations
Dear Mayor Curtis and Council Members:
This is in response to a request from Council Member Tedesco. A city
has no legal duty to construct sewers to take care of surface water. 18A
McQuillin 3rd Ed. §53. 140, citing: Lessenger v. City of Harlan, 184 Iowa
172, 168 N.W. 803 (1918) .
If a City does choose to establish some level of storm sewer service, it
is immune from liability, by virtue of subsection 670.4(8) , The Code, if the
work is done:
". . . in accordance with a generally recognized engineering or
safety standard, criteria, or design theory in existence at the
time of the construction or reconstruction."
Property owners seeking to establish that the City is liable for damages from
diversion of surface water have the burden of establishing that the design of
the project was improper given the "state of the art". It is not the City's
burden to establish that the design was proper. Connolly v. Dallas County,
Iowa (1991) 465 NW2d 875, 877.
However, it is also the rule in Iowa that, unless an easement has been
granted, the City may not collect unreasonable amounts of surface water into
an artificial channel and pour it onto the land of another. Wood v. State
Centre, Iowa (1957) , 85 NW2d 519, 523. If a city does so it can be held
liable to pay compensation on the theory that private property has been
effectively taken for a public purpose. Connolly v. Dallas County (1991) ,
465 NW2d 875, 878.
The information presented to the Council at its January 25th meeting is
not sufficient to establish financial liability or an obligation to undertake
improvements to the drainage in Northridge Subdivision.
Yours truly,
John R. Kla---
City Attorney
JRK:gmw
cc: Steve Schainker
Paul Wiegand
Jerry Byg