Jason E. Todd has learned the hard way that the old adage "No good deed goes unpunished" is alive and well when it comes to dealing with Fairfax County government bureaucracy. He's been trying for 10 months to repair his flood damaged home in the Huntington section of Mount Vernon District.
His big mistake was trying to go above and beyond the necessary level of responsibility to make his Arlington Terrace home better and safer than it was prior to Cameron Run's flood rampage last June. Instead of support and encouragement from County bureaucrats, what he got was legal technicalities and Pavlovian adherence to unyielding dogma about what they perceived was and was not necessary when addressing floodplain construction.
"My Huntington home was flooded with between 11 and 12 feet of water in late June last year. After the flood, I gutted the finished basement and it revealed some major foundation problems," Todd said.
"In the process of assessing the damage, several structural engineers told me the foundation walls were badly damaged and needed to be replaced," he said. Instead of just patching the basement walls, as some of his neighbors had done, Todd decided to follow the engineering advice and literally replace the entire foundation of his 1947 house.
Most Huntington area homes were built in the 1940's according to the standards of that time. What he has proposed to do is replace the foundation walls by 2007 standards. Instead of just cinder block walls as now exist, the new walls would be cinder block reinforced by concrete and steel rebars.
The new foundation would be one of the strongest and most water tight in the entire Huntington area upon completion, according to Todd's contractor, Jack Canon, owner, Like-A-Rock Construction, Inc. "When we first went to the County for the permits they said we couldn't replace the walls because they don't need replacing. They only needed repairing," Canon said.
Why the County would discourage going above and beyond the minimum necessary, in their opinion, has not been answered although several attempts were made to get a definitive clarification. Todd was not seeking any County financial assistance, even from the recently adopted plan to subsidize Huntington residents' flood plain insurance. He was one of the few residents in the that area to have flood insurance prior to the inundation.
THE REAL FLY in the ointment appears to have been Todd's desire to add a door to the basement area in order to provide access and egress to the outside without going up to the first floor level of the home. His rationale was, "Since I was already replacing the walls, I figured it was appropriate to add an entrance directly from the basement to the outside out the back of the house."
He also reasoned, "This would make the house safer in case of fire.
There is much more of a chance of fire than of the house being flooded again. If a fire does occur on the first level and someone is in the basement they could be trapped as in most older homes. This doorway would offer an escape," Todd said.
Although there are small basement windows, they might prove inaccessible to those in the basement at the time of an emergency.
The door he had proposed was to be a regular steel door. The backyard would have had to be terraced somewhat to provide several steps up to the existing ground level. But no actual addition to the home was proposed.
The house immediately next door, to the south, does have a ground level addition as does the one two doors to the north. Todd's proposed change would not have added any ground level addition to a property located in the flood zone.
When Canan went to the County in late December for the necessary permits he was told the basement entrance could not be constructed unless Todd signed the County's standard indemnification agreement releasing the County from any liability in case of future flooding. It also called for Todd to pay all legal costs if any suit were brought against the County as a result of future flooding.
No such indemnification was required of any of Todd's neighbors who also suffered equally devastating flood damage in June 2006 because they chose not to undergo such extensive repairs. "Most of my neighbors merely patched their basement walls," Todd said.
"The indemnification does not define 'flooding' and it also applies to a third party to whom I may eventually sell my house. Lawyers have told me that if the house were flooded by a water main break this document would apply," he said.
"I had no problem with holding the County harmless. But, I have a big problem with the third party issue and the lack of a definition of flooding," he said.
Todd, who is director of Federal Affairs for the Building Owners and Managers Association located in the District of Columbia, suggested an amendment to the County agreement. His amendment would restrict the indemnification to flooding caused by natural weather conditions coupled with the house being located in a flood plain.
"I appealed to both Mount Vernon District Supervisor Gerry Hyland and County Board Chairman Gerry Connolly to have this onerous agreement waived. And, if not waived, to have it amended per my suggested change," Todd said.
As with most requests of that nature it ended up referred to County Attorney David P. Bobzien. The first word of his opinion back to Connolly and Hyland dated February 9, 2007 was "No. DPWES (Department of Public Works and Environmental Services) should not waive the required Agreement or modify it as requested."
Bobzien defended his categorical rejection on, "The responsibility and cost of defending the County's decision to allow the construction in the flood plain and the liability for any judgment as a result of such construction should remain with the property owner who has benefited from the County's decision to allow construction in the flood plain."
Prior to issuing his one-paragraph opinion, Bobzien defined the issue presented by Todd as a request to waive "the County's standard agreement that allows construction in the flood plain." However, in this case the term "construction" is subject to legal interpretation. Usually, that applies to new and/or additional elements.
The only item requested by Todd under that definition was the new door unless replacing the basement walls, to make them better and safer than before, would be interpreted as "construction." If that were the case, it would seem it would apply to the repairs of every structure in Huntington damaged by the 2006 flood.
The agreement, whether applied to Todd or anyone, seems to also raises the question of the ability of the County to contract away liability in a common law state such as Virginia. Hyland, who is an attorney, felt that such an hypothesis could be raised.
"From the beginning I have told Bobzien and others that I thought this whole thing was overkill. You don't need this agreement in this case. This guy is trying to make his place even better. He shouldn't need to sign anything to add a door," Hyland said.
However, based on Bobzien's Feb. 9 memo, Connolly responded to Todd on Feb. 27 with a one paragraph letter transmitting that memo. In it he dismissed Todd's appeal: "The County Attorney believes that this would set a negative precedent and that property owners should assume the risk of construction in the flood plain."
He went on to remind Todd that the Board of Supervisors had "passed a flood insurance grant, which will reimburse your expenses to obtain National Flood Insurance" although Todd had previously explained he had flood insurance and that was not the issue in his case. Although several calls were made to Connolly office to clarify this situation, none of those calls were returned by Connolly by press time.
Calls were also placed to Bobzien, James Patterson, director, Land Development Services, Fairfax County, and Valerie Tucker, chief, Stormwater Engineer, with whom the permit process had taken place. None of those calls were returned.
Instead Merni Fitzgerald, director, office of Public Affairs, Fairfax County, called to answer any questions posed to the others. When told that the questions were technical as to engineering and land use requirements as well as legalistic, she responded, "My call is the County response. You will not be getting a response from anyone else."
Fitzgerald further stated, "When a call is made for information from the press we (the public affairs office) determines who will respond. That is our procedure."
When this was relayed to Hyland after he called back following a full day of meetings at the County Government Center on Monday, March 19, he responded, "I don't know about the Chairman, but she does not speak for me. I speak for myself."
IN AN ATTEMPT to determine if such indemnification agreements were standard procedure in other local governments, a call was placed to Richard Baier, director, Transportation & Environmental Services Administration, City of Alexandria. For Alexandria, his answer was no.
Alexandria has a number of properties, both residential and commercial, located in flood plain zones. Many of these involve some of the most expensive properties within the City.
"Our decision is based on flood proofing the property when repairs or additions are proposed within the flood plain. If the repairs or construction exceeds 50 percent of the assessed value of the property the owner is required to sign an agreement to flood proof the new construction. If those repairs do not reach that threshold we merely ask them to sign such an agreement," Baier said.
However, there is no indemnification agreement under any condition, according to Baier. The 50 percent threshold is based on the pre-flood assessed value of the structure, commercial or residential. The flood proofing applies to what is being added or repaired.
Todd was finally told by the County that he would not be required to sign the indemnification agreement if he dropped the idea of adding the door from the basement. "They told me directly, drop the door and the paper work goes away," Todd said.
That is exactly what happened. "We went back to the County with plans that showed a big red 'X' through the proposed door and we got the permit," Canon said. "They no longer any questioned putting in a new foundation."
Thus far Todd's flood insurance carrier has agreed to pay for only 50 percent of the costs based on repairing what was their before the flood. He is attempting to have them pay 100 percent based on the engineering report that the foundation walls need replacing for safety reasons.
However, "I am prepared to pay the full amount if necessary," he said. "I want it done properly. I am also doing a lot of other things to improve the property such as replacing the entire kitchen" which was also flooded. U.S. Representative James P. Moran (D-8) is working to have the Federal Emergency Management Agency (FEMA) increase Todd's insurance repair allotment.
As Hyland stated during his 2007 Town Meeting, "Some people suggested removal of this community all together (after the flood). This community is affordable housing for County residents. I will fight to keep this community."
Todd's impression is that, "the bottom line is they (the County) don't want these homes here."