RALEIGH — Four homeowner associations in western Fayetteville are trying to get the courts to force Fayetteville to repair and replace the dams that breached in their neighborhoods during Hurricane Matthew in October 2016.
The broken dams left creeks and dry land where there used to be private lakes.
The city of Fayetteville says the lakes and dams are private property, and Fayetteville taxpayers are not responsible for their repair or replacement, or to compensate the homeowners for their loss.
The homeowners’ lawsuit was heard at the N.C. Court of Appeals on Wednesday, where a three-judge panel considered their assertions that the city made the private lakes part of a citywide stormwater disposal system.
The case is at the Court of Appeals because, in March 2023, Superior Court Judge William Pittman ruled in favor of the city and dismissed the homeowners’ case.
The homeowners previously lost when they sued on the basis of these claims in federal court.
The homeowner associations involved are the Devonwood-Loch Lomond Lake Association, the Arran Lake Homeowners Association, the Rayconda Homeowners Association, and the Strickland Bridge Road Homeowners Association. The plaintiffs also include four married couples.
Hurricane Matthew brought nearly 15 inches of rain to Fayetteville in less than a day. Creeks grew into rushing rivers that flooded homes and businesses throughout Cumberland County. The flooding washed out roads and burst dams. Statewide, 25 deaths were reported.
“In 2016, during Hurricane Matthew, all four of the dams overtopped,” one of the homeowners’ legal briefs says. “Three dams (Devonwood-Loch Lomond, Upper Rayconda, and Arran Lake) breached as a result and lost the ability to impound water. The fourth dam, Strickland Bridge Road, did not breach but suffered severe damage.
“Thus, the waters returned to their pre-dam state, with the tributaries meandering through the former lakebeds.”
Since 2016, the homeowner associations’ land has been damaged by the water coming downstream from the creeks that used to feed the lakes, their lawyer Matthew I. Van Horn told the judges on Wednesday.
“And when this water floods, it brings in rodents. It brings in all the stuff on the streets — diapers — it is sewage essentially being dumped on their property,” Van Horn said.
“And before, it wasn’t a problem because the lakes were doing their job” of collecting and filtering stormwater, he said.
The homeowners contend Fayetteville has been using lakes throughout the city for stormwater control, including theirs. They argue in legal papers the city’s mismanagement of its stormwater system caused their dams to break.
The homeowners’ lawsuit says they want to be compensated for lost property values, and they want the city to pay to fix the dams and to properly manage and maintain the lake and dam properties with regard to stormwater control.
The city argues it never took ownership or control of the dams or arranged for stormwater easements with them. The city’s management of its stormwater system had nothing to do with the failure of the dams, it says in a legal brief.
“You can’t blame this on us, or anybody else, except God,” lawyer Keith H. Johnson told the judges on Wednesday.
A hydrological analysis conducted by an expert for the city “shows that these dams, during that hurricane, would have overtopped, even if that hurricane had occurred in the early 1960s, shortly after they were constructed,” he said.
The Court of Appeals judges who heard the case were Judge John Tyson, who is a Fayetteville resident, and Judge Hunter Murphy and Judge April Wood.
In general, N.C. Court of Appeals rulings are issued some months after the parties present their arguments.
Some of the matters the judges are considering:
Senior reporter Paul Woolverton can be reached at 910-261-4710 and pwoolverton@cityviewnc.com.
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