Stormwater Management Talking Points (January 26, 2010)

Stormwater management affects hundreds of common interest communities throughout the Commonwealth.

• The Stormwater Management Act empowers and requires localities to create stormwater management programs.

• Under such programs, a locality often requires residential land developers to create stormwater management facilities on private property owned by a common interest community (“CIC”).  Then—by written agreement—the developer grants the locality a right of entry onto the CIC’s private property in order to perform the maintenance of the facility. 

CICs and its homeowners are vulnerable to liability even in circumstances where the locality is responsible for maintaining the stormwater facility. 

• Landowners have a general duty to keep their land in safe condition.  And, under ordinary circumstances, the party who performs the maintenance of a facility bears the related liability exposure in relation to that facility.

• However, if the party performing maintenance of a facility is a local government, Virginia Code Section 15.2-970 affords the local governing protection under sovereign immunity.  The Supreme Court of Virginia has ruled that this immunity applies to claims related to the care of stormwater management facilities.  

• Sovereign immunity does not extend to CICs as owners of the land on which stormwater facilities are located. 

• As a result, CICs and its members (homeowners) are vulnerable to legal claims, lawsuits, and judgment liability exposure related to stormwater facilities even if the CIC has an agreement with the locality for the care and maintenance of the facility.

In most cases, CICs and its members do not sufficiently understand –or are unaware of—the extent of their legal responsibilities with regard to these facilities. 

• Even when stormwater management facilities function properly, they pose certain dangers to the public, particularly children.

• Most CIC Boards do not enact independent programs to warn or protect persons from injury that may occur in relation to these facilities.  Instead, these CIC Boards rely upon the locality to perform the appropriate tasks of care and maintenance under the terms of the specific agreement with the locality and the general Public Facilities Manual that most localities have adopted.     

• Yet, legal claims resulting from an injury related to the stormwater facility will generally be directed at the CIC because:  a) the CIC owns the property; and b) the locality responsible for the care of the facility is protected by sovereign immunity.    

• The time, costs and dedication of significant resources related to defending legal claims are often significant.  Given the potential for severe injury, the related insurance obligations and judgment liability exposure are also significant.

HB 1100 offers CICs and its homeowners partial relief from legal claims and lawsuits except in those cases where the CIC is grossly negligent.

• In circumstances where a CIC has an agreement with a local government for the care and maintenance of the stormwater management facility, HB 1100 reduces the CIC’s exposure to liability if an accident occurs so long as the CIC is not grossly negligent.  

• HB 1100 reduces the risk of problems for CICs in getting or keeping liability insurance.

• In cases where insurance coverage does not exist or is inadequate, HB 1100 protects innocent homeowners from financially crippling special assessments resulting from costs associated with legal defense and/or covering any judgment liability exposure.

• HB 1100 does not diminish the standards of performance and care provided by localities which bear responsibility for the primary care of the stormwater management facility under a specific agreement or a local Public Facilities Manual.