Normandy Pointe v. Federal Emergency Management

• Decision Date: 16 March 2000
• Docket Number: No. C-3-99-041.,C-3-99-041.
• Citation: 105 F.Supp.2d 822
• Parties: NORMANDY POINTE ASSOCIATES, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

105 F.Supp.2d 822

NORMANDY POINTE ASSOCIATES, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.

No. C-3-99-041.

United States District Court, S.D. Ohio, Western Division.

March 16, 2000.

COPYRIGHT MATERIAL OMITTED

Laura A. Hauser, Peter D. Welin, Columbus, OH, for Plaintiffs.

Pamela M. Stanek, Daytona, OH, Thomas W. Hill, O. Judson Scheaf, Columbus, OH, James J. Englert, Leonard A. Weakley, Cincinnati, CT, Gregory P. Dunsky, Robert J. Surdyk, Dayton, OH, for Defendants.

DECISION AND ENTRY SUSTAINING MOTION TO DISMISS (DOC. # 11) FILED BY DEFENDANT DEWBERRY & DAVIS; UNOPPOSED MOTION TO DISMISS (DOC. # 22) FILED BY DEFENDANT FEDERAL EMERGENCY MANAGEMENT AGENCY SUSTAINED; JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF, DISMISSING LITIGATION FOR WANT OF SUBJECT MATTER JURISDICTION, WITHOUT PREJUDICE TO ASSERTION OF STATE-LAW CLAIMS AGAINST DEFENDANTS OTHER THAN DEFENDANT FEDERAL EMERGENCY MANAGEMENT AGENCY IN STATE COURT OF COMPETENT JURISDICTION; TERMINATION ENTRY

RICE, Chief Judge.

This litigation stems from a dispute over the location of a 100-year floodplain which runs through a housing development owned by Plaintiff Normandy Point Associates ("Normandy"). In its Complaint, Normandy contends that "uncertainty regarding flooding" has rendered it unable to sell lots in its "Hidden Creek" residential development. Normandy also alleges that the existence of conflicting floodplain delineations poses a potential threat to property and to individuals located near the Little Sugar Creek, which runs through the Hidden Creek development. (Id. at ¶ 37, 40).

The Defendants in this action include the Federal Emergency Management Agency ("FEMA"); Dewberry & Davis ("Dewberry"); Woolpert Consultants ("Woolpert"); the Board of Commissioners for Montgomery County, Ohio; the Board of Trustees for Washington Township, Ohio; and five individuals, Bruce E. Davidson, James J. Dobrowski, Douglas W. Betz, Michael R. Flannery and Patrick J. Moone. FEMA is a federal agency with the statutory responsibility for delineating floodplains. (Id. at ¶ 4). Dewberry is an engineering firm which allegedly has assisted FEMA with the delineation of a 100-year floodplain for the Little Sugar Creek. (Id. at ¶ 5, 22). Woolpert is an engineering firm which allegedly entered into a contract with Normandy to determine the proper 100-year floodplain for the portion of the Little Sugar Creek which runs through the Hidden Creek housing development. (Id. at ¶ 2, 15, 16). The Montgomery County Board of Commissioners and the Washington Township Board of Trustees are the governmental entities which serve the geographical area where the Hidden Creek development is located. (Id. at ¶ 6, 7). The individual Defendants are Woolpert employees and general partners who allegedly participated in delineating the floodplain for Normandy. (Id. at ¶ 3).

In its one-count Complaint, Normandy alleges that five different delineations of the 100-year floodplain currently exist. As a result, it seeks a declaratory judgment regarding the proper location of the Little Sugar Creek floodplain, insofar as it passes through the Hidden Creek housing development. (Id. at ¶ 42—43). Normandy alleges that the Court possesses subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, which provides for "federal question" jurisdiction, and 28 U.S.C. § 2201-2202, the Declaratory Judgment Act. Pending before the Court are two Motions: (1) a Motion to Dismiss (Doc. # 11) filed by Dewberry; and (2) an unopposed Motion to Dismiss (Doc. # 22) filed by FEMA.

I. Factual Background¹

Normandy hired Woolpert in 1989 to perform various work in connection with its construction of the Hidden Creek housing development. (Doc. # 1 at ¶ 13). Woolpert's work included delineating a 100-year floodplain on drawings submitted to, and approved by, the Montgomery County Board of Commissioners and the Washington Township Board of Trustees. (Id. at ¶ 15). Woolpert's ability to delineate the floodplain accurately was crucial because a portion of the Little Sugar Creek flows through the Hidden Creek development. (Id. at ¶ 16).

Woolpert employee Michael Flannery assumed responsibility for delineating the floodplain, even though he had no prior experience doing so. (Id. at ¶ 17). When performing his work, Flannery elected not to rely upon an existing FEMA floodplain delineation, which had a margin of error of plus or minus ten feet. (Id. at ¶ 18-19). His final delineation of the floodplain differed significantly from a delineation provided by FEMA in a "Flood Insurance Rate Map" ("FIRM"). (Id. at ¶ 21). The delineation of the 100-year floodplain contained in the FEMA FIRM extended several feet from the banks of the Little Sugar Creek, whereas Flannery's delineation followed its banks. (Id. at ¶ 23). The delineation in the FIRM was based upon engineering work provided to the agency by Dewberry. (Id. at ¶ 22).

Woolpert ultimately incorporated Flannery's delineation of the 100-year floodplain into its work for Normandy, without informing anyone that his calculations differed significantly from FEMA's. (Id. at ¶ 24). Shortly thereafter, home owners constructed homes outside of Woolpert's 100-year floodplain delineation but within FEMA's delineation. (Id. at ¶ 25). The homes then flooded several times after weather events of less than "100-year severity." (Id. at ¶ 26). The accuracy of Woolpert's work was first challenged in early 1995, when a Hidden Creek home builder questioned the position of the 100-year floodplain. (Id. at ¶ 27). Woolpert assured the builder that its delineation was accurate. (Id.). In August, 1995, a lender also questioned the location of Woolpert's 100-year floodplain, noting that it differed from the delineation in FEMA's FIRM. (Id. at ¶ 29). Until that time, Normandy had been unaware that Woolpert's delineation differed from FEMA's. (Id.) In response to the lender's concerns, Woolpert assured Normandy that its delineation was "more accurate" than FEMA's. (Id.).

Woolpert then recommended that Normandy pay it to perform a flood study of the Little Sugar Creek to confirm the accuracy of Flannery's delineation. (Id.). Although Normandy paid Woolpert to conduct such a study, the company did not do so. Instead, it simply relied on topographical data that it had obtained in 1990. (Id. at ¶ 31). Thereafter, Woolpert submitted a "Letter of Map Revision" to FEMA, seeking a change in the agency's official delineation of the 100-year floodplain. (Id. at ¶ 32). Woolpert sought to have FEMA's delineation changed to match the delineation used by Flannery in his prior work for Normandy. (Id. at ¶ 32).

Near that time, the Washington Township Board of Trustees commissioned a company known as Water Resources & Costal Engineering, Inc. ("Water Resources"), to prepare a floodplain evaluation of the Little Sugar Creek, including the portion that runs through the Hidden Creek development. (Id. at ¶ 33). Water Resources determined that flood elevations along the Little Sugar Creek may be several feet higher than previously reported by FEMA or Woolpert. (Id. at ¶ 34). A number of homes are within the boundaries of the 100-year floodplain delineated by Water Resources. (Id.). The Washington Township Board of Trustees shared this information with Woolpert and the Montgomery County Board of Commissioners before FEMA had modified its official delineation, based on Woolpert's Letter of Map Revision. (Id. at ¶ 35). Nevertheless, no one informed FEMA that Water Resources' calculations conflicted with those contained in Woolpert's letter requesting a change in the agency's official 100-year floodplain delineation. (Id.). Woolpert failed to notify FEMA because it hoped to avoid civil liability for its prior error in locating the floodplain. (Id.).

Thereafter, a 1997 Woolpert study of the Little Sugar Creek indicated that Flannery's delineation and the computations contained in Woolpert's Letter of Map Revision to FEMA were both inaccurate. (Id. at ¶ 36). According to this new study, at least seven homes and thirteen additional Hidden Creek lots are within the 100-year floodplain. (Id.). Woolpert's 1997 delineation is substantially similar to Water Resources' study. (Id.).

As a result of "uncertainty regarding the flooding," Normandy has been unable to sell lots in Hidden Creek. (Id. at ¶ 37). In addition, several home owners in the development have filed state-court actions against Normandy, Woolpert and others. (Id. at ¶ 38). During the course of that litigation, the parties to this action have claimed differing 100-year floodplain delineations. (Id.). At least five such delineations currently exist: (1) the delineation contained in FEMA's pre-1990 FIRM; (2) Flannery's 1989-1990 delineation for Woolpert, at the request of Normandy; (3) the delineation contained in Woolpert's 1995 Letter of Map Revision to FEMA; (4) Water Resources' delineation; and (5) Woolpert's 1997 delineation. (Id. at ¶ 39). In light of the uncertainty regarding the proper location of the 100-year floodplain, there exists a threat to property and citizens located near the Little Sugar Creek. (Id. at ¶ 40). As a result, Normandy asks the Court to "examine the information and claims of the various parties concerning the proper location of the 100-year floodplain," and to provide "a judicial determination" of the same. (Id. at ¶ 42-43).

II. Analysis of Unopposed Motion to Dismiss filed by FEMA (Doc. # 22)

In its Motion to Dismiss, FEMA argues that the Court lacks subject matter jurisdiction over this action and that Normandy has failed to state a claim upon which relief can be granted. Upon review, the Court finds FEMA's Motion to be persuasive. It is well established that the United States and its agencies enjoy sovereign immunity, except to the extent that such immunity is waived. Therefore, "`the terms of [FEMA's] consent to be sued in any court define that court's jurisdiction to...