MuskogeePhoenix.com, Muskogee, OK

Local News

April 27, 2013

Flooding lawsuits a battle between experts

Studies presented by city, land owners contradictory

Lawsuits filed by property owners who blame the city for the flooding of their homes in a southeastern Muskogee neighborhood appear to be headed toward a battle between experts.

Seven lawsuits pending since September 2011 have stalled since lawyers representing both sides of the dispute presented the findings of two hydrological studies.

One study was presented in support of the city’s motion for summary judgment. The second was attached to the response filed by lawyers representing the property owners. Each contradicted the other.

“This is absolutely going to be an issue of fact and as to whose expert will be deemed more credible,” City Attorney Roy Tucker said. “We are confident in our hydrologist’s report and we will await a judicial decision.”

A summary of a the hydrology study requested by Bart Fite, who is defending city of Muskogee against the property owners’ claims, states the seven properties at issue and other parts of the addition lie within the 100-year floodplain. The city’s study, conducted by Zephyr Environmental Corp., found peak discharges calculated for Sam Creek, which flows through the subdivision, exceed the amount of water that can flow unimpeded through two street crossings without backing up.

The Meadows Subdivision was built before the area within which it is located was annexed by the city. Fite, citing the study’s findings in his motions requesting the lawsuits alleging inverse condemnation be dismissed, states the area “has always flooded and will continue to flood.”

Bob Rush, who represents the owners of seven homes in The Meadows Subdivision, states in his response to Fite’s motion that flooding in the neighborhood has “become more severe and destructive” over time. Rush alleges his clients have been unable to access their homes more than 50 times during the past 13 years.

John Bolte, an engineer hired by property owners to investigate the sources and causes of flooding in The Meadows Subdivision, opines in an affidavit the city increased the chances of flooding within the subdivision by “changing, diverting and increasing” the flow of surface waters. Bolte linked that in part to “excessive development, improper drainage systems and the actual diversion of waters from other properties.”

Bolte also states the box culverts that allow water to flow beneath two subdivision streets “have been part of the city’s inventory for a long time” and “do not meet acceptable codes for passage of 25-year storm events.” In an affidavit filed with the court, Bolte states, “continued infill development ... without proper detention measures has increased peak flows along this segment of Sam Creek.”

Tucker said he hasn’t seen any development conducted or authorized by the city that would have exacerbated flooding the has occurred in The Meadows.  While that has been alleged by the plaintiffs, Tucker said they he has yet to see any evidence to support those claims.

The plaintiffs named in the seven lawsuits include Stanley and Linda Clark, Harold and LeAnne Cox, W.C. Cochran, Bobby L. and Linda K. Scoggins, Michael and Lori Carmen, Jerry and Marie Maxey, and Crystal Thompson.

Court records show an April 15 scheduling conference was stricken and will be reset upon application. Fite, in court documents, asked the judge to withhold a ruling on the city’s summary judgment motion until the parties have a chance to depose the expert witnesses.

Reach D.E. Smoot at (918) 684-2901 or dsmoot@muskogeephoenix.com.

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