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Poor Storm Preparation Wasn’t Unconstitutional

(CN) - A Pennsylvanian town should not face claims that it turned away volunteers as Hurricane Irene hit hundreds of homes near flooding rivers, a federal judge ruled.

Thirty-four residents of Duryea, Pa., sued the borough and several officials, including Mayor Keith Moss and Police Chief Nicholas Lohman, alleging that they failed to properly prepare for and respond to flooding from Hurricane Irene in Luzerne County on Sept. 8, 2011.

Though the defendants knew the Susquehanna and Lackawanna Rivers were expected to crest by 5 p.m. that day, residents said they ignored an emergency action plan calling for the placement of 5,000 sand bags in areas likely to be flooded.

Two hours later, the waters seriously damaged between 200 and 400 properties, the complaint states.

The Luzerne County Emergency Management Agency had enlarged Duryea's flood plan more than a year and a half beforehand, when local levees were expected to increase the effect of potential flooding, the plaintiffs claimed.

But the defendants left 70 tons of available sand unused and turned away supplies, equipment and volunteers on the day of the flood, according to the complaint. Plus, the dirt dike the mayor built allegedly caused flooding to three plaintiffs' homes.

The Lower Lackawanna Sanitary Authority and Duryea Sewer Authority also failed to shut off sewage valves, despite knowing that flooding was imminent, according to the complaint.

Hurricane Agnes in 1972 made the potential for flooding apparent but the borough declined a grant from the U.S. Environmental Protection Agency and Army Corps of Engineers before the flood to construct levees, residents further claimed.

The complaint asserted two counts for deprivation of the residents' constitutionally protected property interests, as well as two state law tort claims against the Sanitary and Sewer Authorities.

U.S. District Judge Malachy Mannion granted the defendants judgment on the pleadings Friday.

"In this case, the failure to fill sandbags and to take up assistance in the form of supplies and volunteers does not constitute an affirmative act," Mannion wrote. "Indeed, the complaint almost exclusively alleges 'inaction' of the Duryea defendants. The failure to fill sand bags cannot have left citizens more vulnerable than if the state had not acted. Unfortunately, the fact is that the damaged homes at the heart of this action are located near two rivers, and those rivers can flood when there is heavy rain. Plaintiffs admit as much themselves by referring to the 1972 flooding from Hurricane Agnes. The court appreciates that the flooding has caused extensive property damage and hardship for the plaintiffs. However, the danger of such flooding cannot be attributed to the government, and plaintiffs do not allege facts sufficient to show that the alleged inaction was a 'but for' cause of the damage to their properties."

The borough's allegedly egregious conduct during a time of urgency does not "shock the conscience," the ruling states.

"It may have been negligent not to allocate time to filling and placing sand bags after being informed that flooding was likely, or not to accept aid, but what may be a lack of good judgment is not, in this case, a constitutional violation," Mannion wrote.

The mayor's building of an allegedly flawed dike did not violate the plaintiffs' constitutional rights either, the judge ruled.

Mannion declined to rule on the state-law claims, however, saying the plaintiffs may refile them in state court.

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