Neighborhoods want the city to rebuild lakes that drained when dams burst during 2016’s Hurricane Matthew.
Western Fayetteville residents whose private lakes and dams were damaged or destroyed in Hurricane Matthew in 2016 may continue their lawsuit over their losses against the City of Fayetteville, the N.C. Court of Appeals said in a ruling issued Tuesday.
Superior Court Judge William R. Pittman in 2023 had ordered their case dismissed.
This aerial view from Google Maps shows where Arran Lake used to be in western Fayetteville. The lake washed away when its dam breached during Hurricane Matthew in October 2016. Credit: Screenshot from Google Maps
The property owners and their homeowner associations want the city to repair and rebuild the dams of four lakes — Devonwood-Loch Lomond, Upper Rayconda, Arran Lake (which all overtopped and breached during Hurricane Matthew, and no longer hold water) plus the dam for a lake near Strickland Bridge Road (which did not breach but was heavily damaged).
Hurricane Matthew caused severe flooding throughout Fayetteville, Cumberland County and southeastern North Carolina.
The property owners contend Fayetteville had used their lakes to help control stormwater, and so the city bears responsibility for the damaged and destroyed dams.
In court papers, Fayetteville’s lawyers said the lakes were built before 1961 and were designed to be recreational amenities for their neighborhoods. This was long before the neighborhoods were annexed into the Fayetteville city limit.
The city’s lawyers said an engineering study concluded the city’s urbanized infrastructure upstream of the lakes contributed a negligible amount of stormwater during the hurricane’s massive rainfall — that the hydrological models show the water would have overflowed these dams even if the city had not been built up around them.
In a 2-1 ruling, a three-judge N.C. Court of Appeals panel on Tuesday said some of Pittman’s reasons for dismissing the property owners’ lawsuit were valid, but he had been mistaken on other points. The appeals court said the lawsuit should have advanced:
• On the question of whether since the hurricane destroyed and damaged the dams, the city has been negligent in sending stormwater through the empty lake beds (which now have the original creeks on which the dams were built).
• On the question of whether the city is trespassing on private property by discharging its stormwater through the empty lakebeds, instead of discharging it some other way.
Court of Appeals Judge Hunter Murphy and Judge April Wood were in the majority opinion. Judge John M. Tyson, who is a Fayetteville resident, agreed with most of Murphy and Wood’s decision. But he said the lawsuit should also have advanced to consider whether the city, by sending its stormwater through the dry lakebeds, has taken the residents’ property via inverse condemnation
Inverse condemnation occurs when the government takes or damages something you own without paying you first, says a definition published by the Cornell Law School. The federal constitution requires the government to pay you if it takes your property.
This lawsuit could next move to the N.C. Supreme Court to review the Court of Appeals decision. The parties have until Nov. 5 to request this.