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Couple takes builder to court over flooding woes

March 30, 2006|by ROBERT SNYDER

MARTINSBURG, W.Va. - A man's home is his castle, but it might not need a moat to prove it.

But a moat, a flooded basement, a submerged septic field, dead trees and a damaged inground pool are what homeowners Anke and Charles Linton say they got within a few years of purchasing their house in a Berkeley County subdivision in 2000.

This week, the couple brought their complaint against the development's builder, Dan Ryan Builders Inc., to Berkeley County Circuit Court after filing suit in 2004 alleging the company was negligent in the construction of their house in the Harlan Run development and failed to reveal that their lot was prone to flooding and should not have been developed.

In testimony at the opening day of trial Tuesday, Anke Linton, who said she and her husband initially observed water pooling on the property before they purchased it, told a jury of five men and one woman that their property has flooded between 30 and 40 times since August 2000, twice inundating their basement.

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"We were concerned about a little water sitting on the lot; we had no idea what we were really in store for," Anke Linton said.

The couple is seeking $355,000 in damage from Dan Ryan Builders, which they say has not to date submitted a plan for remediating their water woes.

"To this day, no one has been able to tell us how to resolve the flooding on our lot," Linton testified under cross-examination by the builder's attorney, Tracey Rohrbaugh.

A company official said the couple rushed into litigation and failed to give the builder time to respond to their concerns, which originated in the spring of 2003 following heavy rains, according to court documents.

"(The Lintons) chose to not allow us to complete the repairs necessary," said Paul Yeager, Dan Ryan Inc. senior vice president and chief financial officer, following Wednesday's court hearing. "We wish they would have given us that opportunity."

Yeager refuted the Lintons' contention that the lot should not have been developed, noting that the two-lot project, which is part of a subdivision of more than 100 houses, was ultimately approved by the county's planning commission.

At the heart of the couple's complaint is an October 1997 letter to the builder's engineering firm, Truman, Yebernetsky & Roberts, by Steve Aberegg, formerly of the state's Soil Conservation Agency, that indicated the property was unsuitable for building and the construction of septic fields because of flooding and water ponding issues.

Under questioning Wednesday by the couple's attorney, Michael Scales, Dan Ryan, company president and owner, said the project would not have moved forward if the county's planning commission had not approved the development's plat application.

"We had an approved subdivision plan and approved building permits from Berkeley County," Ryan said. "I'm not in the position to do the county's job."

Berkeley County Planning Director Stefanie Allemong said a building permit would not be issued without an accompanying elevation study if the property sits in a floodplain.

Allemong said the parcel from which the Lintons' lot was developed fails to show up on a floodplain database and is not indicated in a 1998 Federal Emergency Management Agency Flood insurance Rate Map.

According to a November 2003 memorandum from county engineer William J. Teach, the couple's lot rested partially in the 100-year flood plain. Teach said the county's jurisdiction does not include the problem of water in basements.

"Neither Berkeley County nor neighboring counties regulate where basements are to be placed nor do they guarantee a dry basement," Teach wrote. "...this would be a contractual matter between the home owner and builder."

According to a 2005 analysis of the couple's lot by Lapina & Associates, LLC engineer Victor Dozzi, the house's basement sits lower than the outside groundwater table, resulting in flooding even in the absence of rain.

"Because of the repeated flooding of (the Lintons lot), it is my opinion that this property is not suitable for the construction of a residence," Dozzi wrote.

The trial resumes today and is expected to last into next week.

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