Nate LeSueur says that for the past year and a half, anytime it rains and with any amount of rain, water would flood onto his property on Melrose Street.
The culprit is a three-story, 5,000-square-foot house under construction in the front yard of LeSueur’s next door neighbor’s existing home.
“Who would want to buy a property that acts as water storage for their neighbor’s property?” LeSueur said at the Aug. 15 Gilbert Town Council meeting. “What do you think the value of my property is now?”
He said that although the property owner submitted a grading and drainage plan in the spring, not one shovel full of dirt has been moved.
He also said that he’s hired an independent engineering firm that reviewed the plan and found it fell short.
“So I’m here to ask for help,” he told the council.
Council did not respond to the residents because state law prohibits members from responding to items not on the agenda.
LeSueur and other residents of the Poco Bueno Ranchos neighborhood first approached the council in January to try and stop what they say is a house with three rental units being built by Joseph and Laura Kerby, who declined comment.
According to the residents who have viewed the plans, the house has three kitchens with different entrances for each of the three levels, two rooftop party decks and a full gym above an RV garage.
The Kerbys’ residential lot is roughly 1 acre in size and zoned single family-35.
Under the SF-35 zoning, a maximum of two primary dwelling units per acre are allowed.
The secondary dwelling must not have an internal access to the primary access, and is allowed to have full kitchen facilities and may be rented, according to the town.
Neighbor Amy Langdon said that after the town rejected the initial permit application for the structure multiple times, staff later without explanation changed its position and approved the permit, calling the project a home addition.
“Any reasonable review of the project will quickly reveal it is not a home addition at all and it is not attached,” she said.
“You met with town staff regarding this project. It appears that based on documents provided to us by a public records request, that while the Town Council was telling us one thing – the project is totally inappropriate – behind the scene town staff was doing something completely different.”
The residents also talked about the council members’ broken promises to help.
“It saddens me we have to come back to address this again,” said Chris Welker, an attorney who lives in the neighborhood. “Several of you spoke with me personally and each one of you who spoke to me said it was inappropriate and council would address it.”
Welker said one council member even put it in writing that the permit issuance was a mistake and that the Town would correct it.
He also said that because town staff failed to have the property owner first submit a grading and drainage plan before beginning construction, the structure is diverting water onto adjacent properties.
“We’re here for one last sincere effort to avoid litigation with the town,” he said. “Two of our neighbors have filed a notice of claim with the town.
“Again, our hope is to encourage you to take another at this to avoid litigation.”
According to the town’s checklist for residential additions, a site grading and drainage plan for lots requiring on-lot retention is required with a construction permit application.
In fact, the town earlier this year halted the project, which already had the framing built, until a plan was submitted.
The town did not respond to the accusations leveled at the council meeting last week or say if it will address the residents’ concerns.
Four council members when contacted by the Gilbert Sun News declined to comment on the issue.
Two neighbors in the Poco Bueno Ranchos neighborhood have each filed a notice of claim against the Town of Gilbert for allowing the construction of a house adjacent to them that they say is flooding their properties.
Nathan and Brooke LeSueur and Charles and Helen Austin are each demanding $750,000 in the claims filed Aug l. A claim is a precursor to a lawsuit.
Gilbert did not respond to questions about the house by the Gilbert Sun News’ deadline.
The claims allege that town staff “improperly issued” a construction permit in December 2021 to Joseph and Laura Kerby, who are currently building a 5,000-square-foot, three-level structure in front of their existing home on Melrose Street on a 1-acre lot. Each floor comes with a kitchen, according to residents.
The LeSueurs’ home is directly adjacent to the site on the north and the Austins’ home is directly adjacent on the west.
According to the attorney for both the claims, town staff initially rejected the Kerbys’ request multiple times to build a new structure on their property.
Attorney Larry Dunn’s claim said that staff for each of the rejections noted that “guest quarters shall be single floor.”
“Nevertheless, without any explanation for its change in position, the Town subsequently approved the permit, even though the proposed structure violates the town’s Land Development Code and Engineering Standards in numerous respects,” the claim states.
Dunn pointed out that the staff approved the construction permit despite the owner’s failure to submit a required grading and drainage plan for the project. The Poco Bueno Rancho community requires on-lot retention drainage.
The Kerbys began building the structure without a grading and drainage plan in place, which caused water to drain into his clients’ properties, Dunn wrote.
Although the town in the spring halted construction until a plan was submitted, Gilbert recently lifted the stop-work order after “improperly” approving a belatedly submitted grading and drainage plan in June, according to the attorney.
The approved plan, however, didn’t stop the ongoing trespass of drainage into the two adjacent properties, Dunn said.
He added that that an impendent engineer’s review found the approved plan lacking, including that the front retention basin will be about 800 cubic feet short of being able to retain the lot’s drainage, and that the plan did not comply with the town’s own engineering standards.
Furthermore, the plan requires the construction of a retaining wall on the Lesueurs’ property line, which they did not approve, Dunn said, adding that the wall also encroaches a public water easement by about 2 feet.
Town staff is aware of the easement, yet it “inexplicably approved a grading plan that would require placement of a retaining wall in the town’s public easement,” Dunn said.
“Shockingly in an apparent attempt to facilitate the construction of the inappropriate structure, the Town previously and secretly attempted to abandon 1 foot of the Town’s public water easement in November 2022, when it presumably discovered that a portion of the new structure on the subject property was constructed over the Town’s water easement,” he added.
Dunn said that instead of ordering the demolition of the offending structure, Gilbert staff attempted to “secretly convey a portion of the easement” to the Kerbys without receiving fair market compensation and without council approval as required by state law.
Dunn claimed that the town has indicated it will allow the Kerbys to continue construction before having the grading and drainage in place.
He further claimed that the new structure doesn’t meet the town’s requirement for a guest quarter or a secondary dwelling.
“The new structure is clearly designed as a multifamily dwelling, in violation of the Town’s zoning regulations,” according to Dunn.