Property Development and Stormwater Runoff: The Reasonable Use Rule Still Holds Water in Ohio

Springtime is right around the corner.  With Spring comes two things—an increase in construction activity, and lots of rain.  Handling stormwater runoff has always been a challenge for property owners, developers, municipalities, and engineers.  Yet, it is a challenge that must be taken on for the proper development of property and the management of stormwater facilities. Improvements made to a property often result in an increase in impervious area, i.e., the amount of surface area that impedes or prevents the infiltration of water, including rooftops, parking lots, and the like.  Impervious area often results in a larger volume of water being transferred to any discharge point, sometimes at an increased rate.  A key goal of stormwater engineering and regulation is to minimize the impact that stormwater flow coming from development has on adjoining properties.

Theories of Liability for Stormwater Discharge

There are three major theories courts have considered to address the issue of liability for injury caused by water runoff.  These are the Natural Flow, Common Enemy, and Reasonable Use theories. 

In general, Natural Flow Theory is a status quo theory where the owner of property is generally not permitted to alter flow that would cause injury to adjoining property.  Natural Flow Theory is friendly to non-developing property owners as it limits potential impact, but it also limits the development of property. 

Common Enemy Theory provides that water is a common enemy to all property owners and a property owner may address water runoff in any way it pleases. Common Enemy Theory is a bit of a wild west theory to stormwater management meant to promote development but could result in significant issues for adjoining property owners.  

Reasonable Use Theory provides that an owner of property is permitted to the reasonable use of its property and to alter the flow of water from its property, even if there is an injury, as long as the alteration is reasonable when compared to the alternatives and the injury.  

Ohio’s Reasonable Use Rule

Ohio law follows the Reasonable Use Theory as the other theories have been viewed as inflexible and difficult to apply in varying circumstances.  Courts in Ohio have created the reasonable use rule to analyze what improvements are permissible when it comes to determining liability for injury to adjoining properties caused by water runoff.  As you might imagine, because Ohio does not follow the relatively straight forward theories of letting nature take its course or permitting a property owner to do whatever they feel is necessary, the compromise of the reasonable use rule involves a detailed legal and fact-based analysis.   

The Ohio Supreme Court adopted the reasonable use rule in McGlashan v. Spade Rockledge Terrace Condo. Dev. Corp., 62 Ohio St.2d 55, 402 N.E.2d 1196 (1980).  In McGlashan, the Court set forth the rule as follows:

A possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor is he absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable.

Under the reasonable use rule, Courts will determine reasonableness based on balancing the gravity of the harm to a plaintiff versus the utility of the acts employed by the defendant.  A court will determine the gravity of the harm by considering the “the extent of the harm involved; the character of the harm involved; the social value that the law attaches to the type of use or enjoyment invaded; the suitability of the particular use or enjoyment invaded to the character of the locality; and the burden on the person harmed of avoiding the harm.”

When determining the utility of the defendant’s conduct, a court will consider “the social value which the law attaches to the primary purpose of the conduct; the suitability of the conduct to the character of the locality; whether it is impracticable to prevent or avoid the invasion, if the activity is maintained; and whether it is impracticable to maintain the activity if it is required to bear the cost of compensating for the invasion.”

The burden is on the plaintiff to prove that the defendant’s acts were unreasonable.

Recent Case Applying the Reasonable Use Rule 

The above factors were laid out in a recent case decided by the 5^th District Court of Appeals in Teeter v. Ball Jar Corp., 5th Dist. Stark No. 2020 CA 00017, 2020-Ohio-6997.  In Teeter, a manufacturer was expanding its facility and, in the process, created additional impervious area.  A stormwater basin was designed to address the additional flow from the improved facility and approved by the municipality having jurisdiction over the project.  The discharge from the manufacturer’s facility crossed over a road and into a grass waterway that passed through an adjoining property. 

The owner of this property indicated that the grass waterway was used by the owner to plant hay and that the owner was able to mow the area even though it was sometimes soggy.  The owner, however, testified that the waterway after the manufacturer’s improvements was in a constant state of sogginess as water from the manufacturer’s site gushed into the waterway and released a constant trickle of water for days after a rain.  The owner alleged that the property value had decreased by hundreds of thousands of dollars because of the impact to the property. 

There was testimony from both sides as to the condition and impact of the development and increase in stormwater runoff.  There was testimony from others that the area was dry when they visited the site and the waterway was vegetated, that the stormwater management plan was reasonable and conservative, and that the pre-development water runoff was traveling to the same location post-development.  While there appears that there was additional water from the development, there was testimony that efforts were made to control the rate of flow to the same pre-development location to limit the impact to the property.

The Court acknowledged that there was evidence favoring both sides but determined that it would not interfere with the findings of fact of the jury that weighed the evidence in the underlying trial, and that there was no evidence that the jury clearly lost its way.  Striking at the heart of the property owner’s argument that there was an increase in overall flow directed at his property that caused damages, the Court made a point that, while there appeared to be an increase in water runoff from the manufacturer’s site, an increase in total surface area runoff alone is not enough to make the conduct of the manufacturer unreasonable.

Conclusion

In Ohio, owners of property are permitted to the reasonable use of their land, which includes interfering with the natural flow of water.  The interference of the natural flow of water, however, is not absolute.  There are various factors that courts consider when determining if the improvements related to water runoff are reasonable.  These various factors involve a deep fact-based analysis based on existing case law to manage the risks involved in developing or improving property.  Property owners, developers, municipalities, and engineers must all understand the legal framework for determining what improvements are reasonable under the various circumstances that exist in the development of property to manage such risk.