Lawsuit in ‘99 flooding damage is thrown out

Colorado Springs and El Paso County can't be held responsible for property damage resulting from a huge flood that washed out acres in 1999, a judge ruled last week.

Two property owners sued the city and county for about $2 million, alleging the government's failure to regulate storm runoff into Fountain Creek caused damage to their land. The property owners include Robert Speight, whose Colorado Springs KOA campground south of the city lost about 7 acres, including three cabins and 55 RV sites in the deluge. About 20 miles to the south, nearly half of the 140-acre Greenview Farm was washed away.

Fourth Judicial District Judge Kirk Samelson dismissed the suit Thursday, finding the city and county are protected by a law that gives the government a pass in nearly all cases - called "governmental immunity" in legal circles.

The 1999 flood caused up to $40 million in damage throughout the Pikes Peak region. Two people were killed in weather-related car crashes in southern Colorado, and the federal government declared six counties, including El Paso, disaster areas.

Speight said Monday that he has repaired about 90 percent of the flood damage at a cost of more than $600,000. He had no insurance to cover the cost, he said.

"It's kind of hard, you know, to fight city hall," he said. "It's just a shame that somebody's not held accountable for failure to control the runoff as far as I'm concerned."

Sandy MacDougall, the attorney representing Speight and the Greenview Farm, said he couldn't discuss the case in detail Monday. Although Samelson ruled against his clients, the judge hasn't issued a final order. That could come in the next week or so, MacDougall said.

Still, MacDougall said government policies allowing neighborhoods to be built without sufficient facilities to accommodate rain runoff contributed to the problem.

"The flooding was exacerbated by urbanization," he said.

Colorado Springs has recently acted to better control the runoff from urban areas, chiefly through the establishment of a Stormwater Enterprise, which started collecting fees in January 2007 based on each property's water-impermeable surface. A multigovernment effort is also under way to study the city's runoff into Fountain Creek and its effect on downstream communities.

Filed in 2001, the lawsuit argued Colorado Springs and El Paso County for the past 30 years did not require developers to build enough water detention ponds and other facilities that could have protected downstream property owners on Fountain Creek from the increase in runoff developments create.

Even if that's true, the county argued, the law holds the government accountable only for how it runs existing facilities to accommodate stormwater, said Assistant County Attorney Lori Seago.

Under Colorado's governmental immunity law, the city, county and its employees can only be sued for the "negligent operation" of a water and sanitation facility. In 2003, the state Legislature passed a law that exempted government stormwater drainage facilities, Seago said.

The city and county tried to have the suit dismissed on that basis, but the Colorado Supreme Court let the case go ahead because it was filed before the law changed, she said.