Pennsylvania law has not clearly set out by when a downhill landowner must sue an upland developer for storm water flooding under either tort or statutory theories.  Last week, the Commonwealth Court decided Lake v. The Hankin Group, No. 278 C.D. 2013 (Pa. Commw. Ct. 2013), which offers some guidance.  In Lake, the downhill landowner, the Lakes, sued the upland developer under the Clean Streams Law, the Storm Water Management Act, and the federal Clean Water Act for damage caused to the Lakes’ property by increased storm water flow during storm events from the newly developed upland property.  At the trial level, the defendants were granted summary judgment based on the fact that they no longer possessed or controlled the upland property and thus no cause of action could exist under the Clean Streams Law.  The Lakes’ remaining claims were determined to be time-barred.

The Lakes appealed arguing that a cause of action existed under the Clean Streams Law despite the fact that the developer no longer controlled the property in question.  The Commonwealth Court agreed and reversed the lower court decision, finding that the Clean Streams Law provides for a cause of action against the upland developer under the theory of continuing trespass.  Despite the fact that the developers had relinquished control of the property, their alleged trespass continued to cause violations of the Clean Streams Law and therefore they could be found to be in violation.  Further, the Court noted that equitable relief could be fashioned to order the current owner/operator to permit the former developers to conduct any required corrective action.

The Commonwealth Court also reversed the lower court’s finding that the claims were time-barred.  Although the Lakes suffered what would be considered to be permanent changes to their property, their allegations also described “ongoing potential safety concerns as well as damage caused by continuing, periodic intrusion” of water onto their property.  The Commonwealth Court found the latter allegations more akin to a continuing trespass and thus the Lakes were not barred by the applicable statute of limitations.