Wietzke v. the Chesapeake Conference Ass'n

• Decision Date: 17 August 2011
• Docket Number: No. 122,2010.,Sept. Term,122
• Parties: Douglas WIETZKE, et ux.v.The CHESAPEAKE CONFERENCE ASSOCIATION, et al.
• Court: Maryland Court of Appeals

421 Md. 355

26 A.3d 931

Douglas WIETZKE, et ux.

v.The CHESAPEAKE CONFERENCE ASSOCIATION, et al.

No. 122

Sept. Term

2010.

Court of Appeals of Maryland.

Aug. 17, 2011.

Neil Intrater (Intrater Law Office, Silver Spring, MD), on brief, for petitioners.Lauri E. Cleary (J. Bradford McCullough and Emily B. Rachlin of Lerch, Early & Brewer, Chartered, Bethesda, MD), on brief, for respondents.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.BATTAGLIA, J.

Douglas and Vanessa Wietzke, Petitioners, filed a four-count complaint against the Chesapeake Conference Association of Seventh–Day Adventists, and various others,¹ Respondents, in the Circuit Court for Montgomery County alleging nuisance, trespass, and negligence in connection with the construction of a new parking lot by the Church, which, the Wietzkes claimed, was ultimately the cause of the “repeated and continu[ed] flooding” of their home in Silver Spring, Maryland. The Wietzkes requested some three million dollars in damages against the Church, as well as injunctive relief requiring the Church to “take any and all necessary steps to prevent further flooding of the [Wietzkes'] home as a result of the changed topography, excavation, construction and/or drainage conditions on the Church property.”

At the ensuing jury trial, after the close of the Wietzkes' case, the Montgomery County Circuit Court granted the Church's motion for judgment as to the Wietzkes' negligence claim. After the close of the Church's case, but before the jury was instructed, the trial judge, over the Wietzkes' objections, denied several of the Wietzkes' requested jury instructions: one requested, but denied, jury instruction would have directed the jury that interference with the comfortable enjoyment of the affected property was the only consideration; another rejected instruction would have admonished the jury that Montgomery County's approval of the Church's construction project was not a defense to the Wietzkes' claim for private nuisance; yet another rejected instruction would have advised the jury that the existence of other contributing sources to a nuisance was not a defense to an offending landowner's own contribution to the same nuisance.

Thereafter, the jury found in favor of the Church on nuisance and trespass, and judgment was entered. The Court of Special Appeals affirmed in an unreported opinion, and we granted certiorari, Wietzke v. The Chesapeake Conference Ass'n, 417 Md. 501, 10 A.3d 1180 (2011), to answer the following questions:

1. Do Maryland Pattern Jury Instructions 20:1 and 20:2, which fail to include any reference to strict liability, but instead require a finding of “unreasonable conduct”, conflict with the Maryland law of strict liability nuisance established by the Maryland Court of Appeals?

2. Were the Wietzkes improperly denied a jury instruction which reflected the strict liability law of nuisance in Maryland when the instructions given by the Court completely failed to address strict liability?

3. Were the Wietzkes improperly denied a jury instruction reflecting Maryland law that County approval does not absolve a Defendant of nuisance liability?

4. Were the Wietzkes improperly denied a jury instruction reflecting Maryland law that a Defendant is not absolved of nuisance liability merely because other sources may have contributed to the nuisance?

5. Did the trial court err in dismissing the negligence count when the evidence established that the Defendants violated, and were given notices of violations, of Montgomery County Code ordinances as a result of the flooding of the Wietzke property?

We shall hold that the doctrine of private nuisance dictates that the fact finder should consider the reasonableness of the offending landowner's use of its property, and that the jury instructions in issue were, then, a correct exposition of the law. We shall further hold that, because the Church did not raise County approval of its construction project as a defense to the Wietzkes' nuisance claim, the Wietzkes' requested jury instruction was not generated by the evidence adduced at trial. Similarly, we shall hold that, because the Church did not introduce evidence that other sources “contributed” to the conditions on the Wietzkes' property as a defense to the Wietzkes' nuisance claim, the Wietzkes' requested jury instruction regarding other sources was inapplicable. Finally, we shall hold that the trial judge erred in granting the Church's motion for judgment on the Wietzkes' negligence claim.

Testimony adduced at trial reflected the following:

The Church and the Wietzkes owned two adjacent properties in Silver Spring, Maryland. The Wietzkes' property sits at the corner of Mill Grove Place and Magnolia Street, while the Church's property is situated at the corner of Timber Ridge Road and Magnolia Street. A topographical map establishes that the properties are situated together such that the Wietzkes' property sits at the bottom of a hill and the Church's property sits atop a hill.

In 2000, the Church made the decision to construct a new parking lot on its property, though construction did not begin immediately. On March 4, 2004, the Church sent correspondence to all neighboring, downstream property owners, including the Wietzkes, informing them it intended to develop its property and employ a “stormwater management” concept to deal with any increased runoff the construction may cause. The letter invited neighboring landowners to provide comments and concerns to the Montgomery County Government. Though some neighbors responded, the Wietzkes did not.

The Church, in conjunction with the construction of the parking lot, developed a stormwater runoff and sediment control strategy, which was intended to control the flow of surface water from the Church property. On October 26, 2006, the Church held a pre-construction meeting, which was attended by a team of engineers, contractors, excavators and sediment control experts, and the stormwater and sediment control concept was discussed at length. Moreover, a large portion of the pre-construction meeting focused on the placement of certain limitations on how much earth could be disturbed during the construction of the parking lot.

Thereafter, between October 26, 2006 and mid-to-late summer of 2007, a large stormwater pond was constructed on the Church's property. The stormwater pond, which held thousands of gallons of water, was designed to collect excess water runoff from the Church's property to release it in a slow, controlled manner. Moreover, the stormwater pond was designed to filter solid matter out of the water by guiding it through a “silt fence” made of woven fabric. Also, to maintain the purity of the stormwater on the Church's construction site, earth dikes, or trenches fashioned out of dirt, were dug to direct stormwater around the construction site.

On two occasions, once on November 28, 2006, and once on June 14, 2007, the Church was visited by a County Inspector and issued a “Notice of Violation” for being in non-compliance with certain County ordinances relating to stormwater and sediment control. The November 28, 2006 Notice, issued pursuant to Section 19–7 of the Montgomery County Code,² was issued because the Church had not yet built an earth dike and other sediment controls. The November 28, 2006 Notice itself provided:

The site is out of compliance due to the sequence of construction not being followed. Install the earth dike and other sediment controls listed and call for an inspection.The November 28, 2006 Notice was accompanied by an “Inspection Summary,” which instructed the church to cease construction until it built an earth dike:

Inspection this date reveals the following:

1) The site is out of sequence for construction. A notice of violation is being issued.

2) Install the earth dikes per sequence of construction.

3) Bring the site into compliance and call for inspections per the sequence of construction and preconstruction memo.

4) If any changes are wanted, first contact the inspector and your engineer.

The second Notice, dated June 14, 2007, issued pursuant to Section 19–16(a) of the Montgomery County Code,³ was issued after an usually heavy rainfall, when stormwater had escaped from the earth dikes into the Church's construction site, permitting soil to be washed away. The June 14, 2007 Notice contained a brief narrative, which provided:

Sediment left the site after a storm event. There was flooding in the neighborhood. Contact your engineer for a Solution.The June 14, 2007 Notice was also accompanied by an Inspection Summary, which stated “there was flooding of the house,” without identifying any specific property:

Inspection this date reveals the following:

1) A rainfall event last evening caused sediment to leave the site. The clean water diversion worked but there were wash outs on the private roadway below the site.

2) The water built up on the super silt fence and because of the head pressure of the water caused the water to be forced under the fence.

3) There was sediment water and deposition on the property below. There was flooding of the house.

4) The site is not in sequence with the plans. The parking lot area was cleared earlier and some of the area was to receive excess dirt from the pond. The dirt is now being hauled off. Complete the remaining removal of dirt (the dewatering device and riser are installed[) ]. Stabilize and install the safety fence. Call for inspection of the sediment basin.

5) A notice of violation and a civil citation are being issued.

During the Wietzkes' case, the Wietzkes themselves testified that they had experienced three major flooding events in their basement, which they used as a family room, one in June of 2006, one in November 2006, and one in June of 2007. The Wietzkes also testified that they had experienced somewhere between forty to fifty more minor flooding events in their basement...