Winther v. U.S. Steel Corp.

• Decision Date: 13 July 2020
• Docket Number: Case No.: 2:18-CV-1693-RDP
• Parties: MATTHEW T. WINTHER, et al., Plaintiffs, v. UNITED STATES STEEL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

MATTHEW T. WINTHER, et al., Plaintiffs, v. UNITED STATES STEEL CORPORATION, Defendant.

Case No.: 2:18-CV-1693-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

July 13, 2020

MEMORANDUM OPINION

This matter is before the court on (1) Defendant United States Steel's Motion for Summary Judgment (Doc. # 19); (2) Defendant's Motion to Exclude the Testimony of James J Connors (Doc. # 17); (3) Defendant's Motion to Exclude the Testimony of Chris Johnson (Doc. # 18); and (4) Defendant's Motion to Strike the Declaration of Matthew Winter (Doc. # 29). The Motions have been fully briefed. (Docs. # 19-1, 22-28, 32-34). After careful review, and for the reasons discussed below, Defendant's Motion for Summary Judgment is due to be granted, which renders Defendant's other motions moot.

I. Background¹

The Preserve is a 325-acre mixed use development in Hoover, Alabama, developed by U.S. Steel. (Doc. # 16-11 at 3). The City of Hoover approved the development. (Doc. # 16-9 at 21). As part of the approval process, the City required a presentation about the development's master drainage plan. (Doc. # 16-9 at 28-29). The City required more specific engineering plans for each phase of the development, including detailed analyses and descriptions of any drainage features. (Doc. # 16-9 at 23-25, 52). U.S. Steel prepared the required plans and received approval from the City, indicating that the plans complied with City of Hoover regulations. (Doc. # 16-9 at 44, 55; Doc. # 16-11 at 2; Doc. # 16-10 at 2). Development of The Preserve began in 1998, and physical construction began in 2000. (Doc. # 16-15 at 22-23²; Doc. # 16-12 at 2).

U.S. Steel retained Walter Schoel Engineering, Inc. ("Schoel Engineering") to develop the master drainage plan for The Preserve. (Doc. # 16-3 at 20). The focus of the plan was Hurricane Branch, which experienced flooding that had impacted existing developments in Hoover long before The Preserve's development. (Doc. # 16-9 at 26-27). The central component of the master drainage plan was the installation of an undersized culvert at an upstream location, creating significant inline over-detention of stormwater flows. (Doc. # 16-9 at 25-27). The City of Hoover accepted and approved the plan and the Federal Emergency Management Agency(FEMA) approved the undersized culvert's installation. (Doc. # 16-2 at 23). The culvert has been successful in reducing peak flows in Hurricane Branch by 15% to 35%, depending on the particular storm event. (Doc. # 16-9 at 27).

By 2007, the majority of The Preserve's development was complete. (Doc. # 16-12 at 2). Within The Preserve 105 lots had been developed, and in the neighboring subdivision, Highland Crest (which is not affiliated with U.S. Steel), 21 lots had been developed. (Doc. # 16-15 at 44; Doc. # 16-12 at 2).

Hurricane Branch flows through three undeveloped lots adjacent to The Preserve, which were eventually purchased by the Winthers (the "Winther Property"). (Doc. # 16-16 at 100-101). The Winther Property is in a ravine, with Hurricane Branch at the bottom of the ravine. (Doc. # 16-8 at 40 ("Q. So the creek is in the bottom of a valley or ravine? A. Correct, naturally formed."); Doc. # 16-9 at 152). The Winther Property slopes steeply upward to Flintshire Drive on its eastern side, and slopes steeply upward to The Preserve on its western side. (Doc. # 16-9 at 151-52; Doc. # 16-18).

The previous owners of the Winther Property were David Rawson and his brother. (Doc. # 16-16 at 34-35). Rawson initially purchased and subdivided the property, intending for homes to be built on Lots 1 and 3, leaving Lot 2 vacant in between. (Doc. # 16-16 at 34-35; Doc. 16-17). Rawson, who was also a developer, arranged for the construction of driveways crossing Hurricane Branch on Lots 1 and 3, either without cost or at reduced cost, and worked with builders with whom he had a professional relationship in doing so. (Doc. # 16-13 at 35, 47 ("Well, when you draw subdivisions, which is what I did a lot of back then, contractors really like to be your friend.")). Rawson had building pads "cut in" on Lots 1 and 3. (Doc. # 16-13 at 56-57). Rawson did not obtain permits from The Corps of Engineers or FEMA for the workperformed in Hurricane Branch, he sized the culverts "on a scratch pad," and he understood that the stream crossings would flood under certain conditions. (Doc. # 16-13 at 40 ("My theory was that if it went underwater, it just went underwater and I would stay on which side of the culvert I was on.")).

In 2007, while still residents of Arizona, Plaintiffs Tracey and Matthew Winther bought the three lots on the Winther Property for the total purchase price of $145,000. (Doc. # 16-16 at 8, 13-14, 19).³

Before purchasing the Winther Property, Mr. Winther was aware the Property was in a floodplain of Hurricane Branch. (Doc. # 16-16 at 34 (He and Rawson "had conversations about exactly where the floodplain was and where the building sites were and the creek crossings and it - you know, that's as far as the concern went. There were good answers by someone who seemed to know about these things.")). The Winthers performed no investigation of the driveways or creek crossings prior to purchase. (Doc. # 16-16 at 53-54).

When the Winthers eventually relocated to Hoover, Alabama, in late 2010, they rented a house, anticipating that they would build a home. (Doc. # 16-16 at 26). However, other than a few preliminary inquiries, the Winthers have never taken any concrete steps toward building a home on the Winther Property. (Doc. # 16-16 at 43). For example, they have not sought a building permit. (Id.). Moreover, the Winthers were not successful in securing financing from a lender to build a house due to their financial condition. (Doc. # 16-16 at 21-22). They rented different properties until they purchased a house somewhere else in mid-2018. (Doc. # 16-16 at 7, 27).

Although the Winthers contend increased flows from The Preserve are precluding them from developing Lot 1, the Winthers agree that none of those concerns have prevented them from building on Lot 3. (Doc. # 16-16 at 163).

Stormwater runoff flows downhill from The Preserve to Hurricane Branch through a natural drainage way on the Winther Property. (Doc. # 16-9 at 183-84; Doc. # 16-12 at 2). The drainage way is adjacent to the driveway on Lot 1, passes the building pad on Lot 1, and empties into Hurricane Branch immediately adjacent to the Lot 1 stream crossing, on the downstream side. (Doc. # 16-9 at 183-84; Doc. # 16-12 at 2). This drainage way is referred to as "Tributary 1." (Doc. # 16-at 13-14; Doc. # 16-18).⁴

In 2013 and 2014, only seven additional lots were developed in The Preserve, and the road crossing above the Winthers Property was piped for stormwater flow. (Doc. # 16-12 at 3).

In mid to late 2014, while visiting the Property, Mr. Winther observed what he believed were increased flows down the drainage way, Tributary 1, during rain events. (Doc. # 16-16 at 59-61 ("So, there was just a lot more water coming down. And so this caused me to investigate why there was suddenly more water coming down this little tributary that, you know, like I said, I - I understood it to be a ditch....")). Mr. Wither associated the increased water flows during rain events with an increased rate of erosion of Tributary 1. (Doc. # 16-16 at 59-61 ("And, you know, it had eroded a lot around the time of that event.")).

Mr. Winther complained to U.S. Steel, the City of Hoover, the Alabama Department of Environmental Management, and the Corps of Engineers, asserting Tributary 1 was experiencing increased stormwater flows and erosion. (Doc. # 16-16 at 69, 83-84. On March 17, 2015, a meeting was held at the City of Hoover's offices to discuss Mr. Winther's concerns. (Doc. # 16-9 at 93-94). The City Engineer, Rod Long, Mr. Winther, representatives from U.S. Steel, andWalter Schoel, III, from Walter Schoel Engineering, attended the meeting. (Doc. # 16-16 at 129-131).

During the meeting, Schoel explained that it was Schoel Engineering's view that increased flows from The Preserve were not causing increased erosion to Tributary 1. (Doc. # 16-9 at 94-95). Rather, in Schoel's professional opinion, the construction of the driveway and building pad on Lot 1 had impinged on and narrowed the natural drainage way, channelizing and increasing the velocity of stormwater flows. (Doc. # 16-9 at 94-95). The Hoover City Engineer, Long, agreed with Schoel's assessment. (Doc. # 16-9 at 95 ("Q. Do you have an opinion about whether encroachment of the building pad fill into the tributary created an issue with erosion? A. Yes, sir. I think it contributed to the erosion.")).

U.S. Steel offered to armor Tributary 1, by the driveway and stream crossing where the increased erosion was observed. (Doc. # 16-16 at 132). However, Mr. Winther did not believe the proposed armoring "was an acceptable resolution to the problem." (Doc. # 16-16 at 133, 135 ("I indicated that I didn't think this was a reasonable solution, and that was sort of the end of the conversation.")).

Although Schoel Engineering did not believe the erosion in Tributary 1 was attributable to increased stormwater flows from The Preserve, it nevertheless began researching other possibilities for reducing flows down Tributary 1. (Doc. # 16-3 at 82-83). Schoel ultimately suggested collecting a significant portion of flows that had been directed to Tributary 1 and re-routing them to another drainage feature entirely on U.S. Steel's property that emptied to Hurricane Branch at another location upstream of the Winther Property. (Doc. # 16-3 at 82-83; Doc. # 16-9 at 125). In October 2015, when it approved the Phase XIV preliminary plat package,the City of Hoover approved Schoel Engineering's plan to re-route the stormwater flows. (Doc. # 16-9 at 174-75).

The Winthers filed this lawsuit in October 2017. (Doc. # 1-1). Mr. Winther says his first concern (relevant to this case) is the erosion...