Stockton homeowners ordered to move their swimming pool

[The Straight Story]

Stockton homeowners ordered to move their swimming pool

STOCKTON, CA - In a graphic example of how a small mistake can have dramatic consequences, a Stockton couple has been ordered to move or remove a built-in backyard swimming pool.

Peter and Sharon Giudice are among eight families living along Bear Creek who received a notice from the Central Valley Flood Protection Board (CVFPV) March 24 ordering them to remove fences, retaining walls and landscaping from the levee behind their homes. In the case of the Giudices, the order includes the inground swimming pool with a spa and waterfall they built 15 years ago.

"We have an execution date," Sharon Giudice said. "We have 60 days to remove everything or they'll come in and bulldoze it and send us the bill."

When the Twin Creeks Estates subdivision map was drafted in 1990, it failed to show a 10-foot levee protection easement along the back property lines on Curlew Street, which runs parallel to Bear Creek. Sharon Giudice said the eight families who bought waterfront lots on Curlew Street believed there was no restriction on what they could do in their backyards.

Homeowners planted trees, erected fences, built concrete walls and steps to allow easy access to boat docks on the creek. But in the wake of Hurricane Katrina, the U.S. Army Corps of Engineers determined the homeowners' activities threatened the integrity of the levee.

The dispute with the eight waterfront homeowners could potentially impact all 380 homes in the subdivision. If the Bear Creek levee doesn't meet federal flood protection standards, the entire community could face mandatory flood insurance requirements.

http://www.news10.net/news/story.aspx?storyid=78762&catid=2

[tammywammy]

1. I wonder if the easement was mentioned on the title. n/t

[flvegan]

2. That's going to be the (literally) million dollar question.

[tammywammy]

3. I didn't have any luck finding any other articles on this.

I'd be interested in how this turns out.

[flvegan]

4. Me too. Since the Plat doesn't show it, this will get relatively ugly, quickly.

I don't know what the laws are in CA as to adverse possession, etc but in Florida, this would be quite the test for case law.

[tammywammy]

8. Here's an interesting comment

What this story didn't relate is that these eight waterfront owners bought the levee property lots for $5,000 each AFTER they already owned their homes. When the downstream bridge was installed, they received a damage settlement of $80,000 EACH because they could not sail a sailboat under the bridge. None of them owned a sailboat but they each made a $75,000 instant profit! Some of the encroachments were permitted AFTER they were installed. The original permits indicated that the items may have to be removed in the future. The future is here.

If the encroachments are not removed BEFORE flood maps are redrawn, 375 non-waterfront homeowners will be required to purchase mandatory flood insurance at $1500 to $2000 (grandfathered rate--not transferable to new owners) per year. Some people may lose their homes because they cannot afford the added expense. Also, once in a flood zone, if a fire occurs, the owners may not be able to rebuild, therefore losing their homes! So, while I empathize with the waterfront owners losing some encroachments, how does that compare to innocent bystanders losing their homes? And if Twin Creeks gets placed in a flood zone, do you think anyone will be able to sell their homes? Especially with the mandatory flood insurance bill to new owners of $4000 to $5000 per year, and the fact they may not be able to rebuild if their home burns?

If it's just a matter of forcing someone else to pay for the encroachment removal, why not hire your own contractor (where YOU control the costs) to remove the encroachments, and THEN sue whomever you feel is responsible? This way, your neighbors will not be forced into a flood zone, and maybe this will help to prevent any further forclosures in Twin Creeks.

[Xithras]

7. I'd be shocked if it didn't

I own riverside property only about 30 minutes from there. My title, like just about all titles on Central Valley flood areas, contains levee easements. It's a pretty standard thing, and most of them date back to when this was all farmland. When the property was subdivided for homes, the easements should have been rolled forward.

The real question the homeowners should be asking is whether they want to fight this at all. If the levee easment doesn't exist, then the ACoE isn't responsible for fixing the levee, and the homeowners themselves will shoulder the liability if the levee breaks and floods other peoples homes.

My guess is that it's a paperwork snafu though, and that they probably have a title insurance claim. They'll lose the pool though.

[Cirque du So-What]

5. I am not a lawyer

but from what I just read, it seems to me that either the development company or the title company are responsible, as the subdivision map didn't show the 10-ft easement. Also, I wonder if what the homeowners did was OK until the Army Corps of Engineers decided - in their infinite wisdom - to change the rules. In any event, I'm siding with the homeowners on this one until I see a compelling reason why they should be on the hook for all costs related to removing everything from the easement.

[ellenfl]

6. if the easement was recorded, it should not matter that it was

overlooked on the plat/map and the homeowners could make a claim against the title insurance company (who will then probably make a claim against the agent). if there was no other evidence of the easement except what was supposed to be on the plat/map, then they are sol regarding a claim against the title insurance. the title insurer cannot insure against unknown unknowns (to paraphrase rummy). however, if the cvfpv knows of the easement, that would suggest that it should have been a known exception to title. either way, the pool will have to go. they might as well get it done themselves, then make a claim against their title insurance, because the gummint will charge more for the removal, i would bet.

ellen fl