Bluff Homeowners Win Lawsuit Against County Commission

Judge orders county to facilitate FEMA grant for erosion mitigation despite the commission's decision to terminate the grant

By Molly Priddy
The landslide on Susan Storfa's property along Whitefish Stage Road, seen from Village Greens on Wednesday, March 26, 2014. Greg Lindstrom | Flathead Beacon

A Flathead County District Court judge has ruled that the Flathead County Commission must move forward with a grant that would provide a group of homeowners with the money to mitigate the erosion of a bluff near Whitefish Stage Road.

Last March, the commission shocked the homeowner group involved with setting up the Federal Emergency Management Agency (FEMA) grant with its decision to terminate the grant, despite supporting the process since its inception in 2011.

The county commissioners said they had concerns about the county being held liable if something goes wrong with the project.

Susan Storfa and Scott Gearheart, two of the homeowners who live on top of the sloughing bluff overlooking Village Greens Golf Course, sued the commission after the reversed decision.

Storfa’s property experienced significant erosion in 2010, when she lost a large section of her property when the bluff collapsed during a landslide. After that, she and other homeowners, along with engineers and county employees from the Office of Emergency Services, began pursuing the $400,000 FEMA grant that would mitigate the bluff’s further disintegration.

FEMA approved the grant in 2013, awarding the project $298,000, with the homeowners coming up with the remaining $102,000 match. The county’s only job was to act as a facilitator for the grant funds, because FEMA needed a government agency to act as a “flow-through” for the landowners.

Despite having no financial skin in the game, the commission decided to reject the grant with little discussion as to why, other than voicing concerns about liability in interviews after the public meeting.

In his March 20, 2015 summary judgment, Judge Ted O. Lympus ruled that the commission’s decision to terminate the grant last March was unconstitutional, and in a March 27 ruling, ordered that the original agreement between the county and the landowners for the grant must be fulfilled.

County attorneys argued that the commission had a right to kill the grant, because the landowners didn’t have the right to enforce any provisions within the state-local agreement for the grant.

However, Lympus wrote that the landowner agreement with the county – which outlines the money and in-kind contributions the landowners would pay for the grant – is a valid contract, and the county interfered with that agreement when the commission voted to terminate the grant.

The county does have the right to terminate its previous approval of the FEMA grant, Lympus wrote, but the vote also changed the terms of the landowner agreement, which therefore made the March 2014 resolution unconstitutional.

In an interview with the Beacon last week, Storfa said she and the other homeowners involved are happy the court ruled in their favor.

“We’re pleased, but we’re disappointed that we had to go to such an extent to get our decision,” she said. “It just doesn’t seem fair that we had to go to that length to get what was ours.”

Storfa also said she didn’t think the county “played fair” on this issue, and that the homeowners were put through additional financial hardship due to having to pay for attorneys to sue the commission.

“(The commission) didn’t have to worry about attorney costs, because everybody in Flathead County was paying for their attorneys,” Storfa said.

The next move for the homeowners is to get the money flowing to get the bluff fixed, she said. As of the ruling, there was only about a year left to use the grant, she said.

“We have to have it done by next September,” Storfa said. “The goal is to get to work pretty quick if we can this year.”

When the homeowners applied for the FEMA grant, it was noted that the annual erosion rate of the slope would eventually lead to the “catastrophic failure of six residences over the next three to eight years,” and that the total appraised value for the threatened properties is about $1.4 million.

The bluff continues to erode. Already this spring, Storfa has lost a “big tree” with another slide.

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