Attorneys for the City of Bloomington have rejected a settlement request for 10 homeowners who experienced damage from summer flooding and sewer backups.
“While the city does empathize with your clients' claims, it nevertheless must stand by its previous determination of liability and deny these claims,” wrote attorney Quinn Johnston in a letter dated Oct. 5 to Bloomington attorney Will Mahrt. Johnston cited the Act of God defense and government tort immunity as reasons the city cannot be held liable for any damages.
Mahrt said he now plans to file a lawsuit within 30 to 60 days, but it’s not clear how many homeowners will join in the litigation. He said as of Friday none have hired him.
“It is possible that no clients will hire me, in which case I will be pursuing my own claim against the city,” Mahrt said via email. Mahrt, who said he is one of the storm damage victims, added, “It is possible that dozens of clients will ask me to file on their behalf.”
Mahrt had proposed the city pay $310,000 to 10 homeowners for damages their homes sustained when stormwater and raw sewage flooded their basements in late June.
The city is using a third-party administrator to handle the claims instead of its own legal staff. “They typically utilize defense counsel when there are claims brought against the city,” said Katherine Murphy, Bloomington external affairs and communications manager, the city will pay $175 per hour for the outside legal help.
Mahrt said he wants to talk to Bloomington City Council members to see if the council provided any input on his demand before the city’s legal department replied. The city has discussed providing some financial relief, but it wants those residents to exhaust all other funding sources first while it explores a funding framework. The council has generally steered clear of the liability question.
The city announced it would have $544,000 available through the Illinois Housing Development Authority(IHDA) to help affected homeowners who meet income requirements.
Legal liability
An expert in local government law said there's no little legal precedent for successfully suing a government body for flooding and sewer overflows as some Bloomington homeowners may look to do.
Thomas Skuzinski is an associate professor of public administration at Northern Illinois University. He said homeowners would have to show the city was “willfully or wantonly” negligent' in maintaining infrastructure, adding cities could become liable if they don't address persistent flooding.
“If extreme weather becomes more common, and infrastructure continues to age and deteriorate, at some point there will be a successful claim that a municipality violated its legal standard of care, or that it should compensate a homeowner for a flood-related taking of property,” he said. “No municipality—I would say Bloomington is included in that—wants to be part of a case that sets those kinds of precedents.”
Skuzinski added the courts have generally given local governments “very broad discretion to determine what’s in the public interest,” but he cautioned Bloomington and other cities to make sure they are keeping pace with peer municipalities in infrastructure maintenance.
The city council has discussed accelerating its timeline to finish its Locust-Colton sewer separation project, but that makes up only a portion of the city’s 85 miles of combined sewers in its older neighborhoods. Bloomington Public Works Director Kevin Kothe previously has said separating combined sewers “doesn’t necessarily fix all the flooding problems.”
