A group of property owners sued the city for raising the road in front of their houses and sending floodwater into their property, making it unusable as a short-term rental.
For Miami Beach, it’s the latest challenge to efforts to deal with rising seas — and an example of the legal hurdles that cities around the state (and nation) may face as they plan for the future.
“Miami Beach is at the forefront of resilience efforts to reduce flood risk from storms, high tides and sea level rise. We strongly believe the city’s resilience program benefits all properties, including this one. The City has not been served with the complaint, but once we are, we will proceed accordingly,” city spokesperson Melissa Berthier said in a statement.
In the lawsuit, the owners argue that they have never been legally required to manage the stormwater that flows onto their property. They said they’ve been able to drain it into the street since the houses were first built in 1929 and 1938.
That changed when the city elevated nearby roads more than a foot above the adjacent properties. Miami Beach faces more than two feet of sea rise by 2060, which could swamp thousands of homes and cause billions in property damage.
Multiple expert panels have called road raising an integral part of the city’s plans to protect itself from climate change and ensure that the city remains a place worth living in and investing in, but nearly all have told the city to communicate better with residents about it.
Miami Beach elevated 14th street by about two feet in 2014 while the state raised Alton Road, and the improved flood pump station was one of several built under “emergency” no-bid contracts. None of the flood pump stations built in that time period had generators on them because of concerns from residents that the diesel belching machines were loud and unsightly. Since then, generators have been more common in pump projects.
In 2017, Tropical Depression Emily blew through South Florida and flooded the area with about five inches of rain. Streets were impassable, cars were swamped and the power went out — taking the brand new storm pumps with it. A city spokesperson said the rain was double the amount the pumps were designed to handle.
In the lawsuit, the property owners described how “several inches of water entered the existing structures on the Properties and took several days to recede.”
In 2018, one of the companies in the lawsuit sued its insurance company for failing to cover flood damage from Tropical Depression Emily, and the two sides settled out of court in 2019. The suit details a few more floods in June 2020 and February 2021 when the stormwater system “failed” and flooding damaged the buildings, including their foundations.
“Eventually the on-going flooding will damage the foundations of the Properties to the point where the existing structures on the Properties will collapse or be rendered permanently uninhabitable,” the lawsuit reads. “Even between flood events, the unpredictability of the next flooding event renders the Property virtually useless and without value.”
The lawsuit represents two companies that own short-term rental properties on West Ave — Varcamp Properties and JV Holdings 1400. Both companies are run by Luis Varela, Angelica Varela, Karen Campbell and Bryan Campbell, according to Sunbiz records.
A phone number listed on the Varcamp website was disconnected and emails to the listed addresses bounced back.
The attorney representing the case, Tom Robertson, is a partner at Miami law firm Bercow Radell Fernandez Larkin and Tapanes. Previously, he served as assistant county attorney for Miami Dade. He did not respond to multiple requests for comment.
Varcamp Properties and JV Holdings 1400 want the city to compensate them for the damage and loss of business and allow them to renovate the properties while holding onto their grandfathered status as short-term rentals in a neighborhood where the practice has been banned.
This is the second such lawsuit levied against the city for its street elevations. The first, from Mirador Association, was dismissed.
Controversy From The Beginning
The threat of lawsuits has loomed over Miami Beach’s road-raising plans from the start.
Unhappy residents who wanted to avoid the disruption, expense and potential flooding associated with higher roads warned commissioners in multiple public meetings that they would sue if the projects went forward. In some cases, the pushback worked and the projects were delayed.
Previously, the city attorney has said that he doesn’t believe such lawsuits would be legal.
Erin Deady, a lawyer representing several local governments in climate adaptation matters, said there are long-standing legal theories about whether or not a government can flood a property, but they haven’t been applied to climate-related infrastructure yet.
“Lawsuits over infrastructure and resiliency and climate adaptation response, they’re kind of no different than historical flood cases we’ve had for a long long time. It’s just adding an entirely new dimension to it where we don’t have a lot of clear case laws yet,” she said.
Deady advises her clients, some of whom are watching Miami Beach’s road-raising struggles closely, to consider how the design of their projects will impact the properties around it.
“This is an evolving thing so we’re all learning from each other. What’s working for one local government may work for them, but it may not work for another local government,” she said.
Miami Beach’s street elevation plans have also tested the boundaries of regulatory and insurance agencies, although the city came out ahead in both occasions.
After a heavy rainstorm caused flood damage, a restaurateur in Sunset Harbour, one of the first neighborhoods to see dramatic street elevation, was initially denied coverage from his flood insurance company after it classified his first-floor restaurant as a “basement” compared to the newly raised road. It took 14 months and lobbying from the city, but his claim was eventually approved.
After the city raised roads in its first residential neighborhood, the tony Palm and Hibiscus Islands, the city’s inspector general found that consultants warned that raising roads would flood homes, which clashed with a city mandate to raise low elevation roads. The city’s solution, installing drains to the public stormwater system on private property, got them in trouble with regulators after the city failed to get the proper permits.
Road Raising Continues
Plans to elevate the crossroads near the homes named in the lawsuit, West Avenue, are still in progress. Construction could start before the end of the year.
Valerie Navarrete, a realtor and former president of the West Ave Neighborhood Association, said she’s still looking forward to the project. Her neighborhood floods badly and she’s already spent big bucks to try and adapt.
Her Lincoln Road condominium has an underground garage, so rain and tidal flooding pour in from the street. The combination of pricey storm water pumps and an automatic portable dam that blocks water from flowing down the ramp and into the garage seems to have solved the problem for now. But she worries that if the city doesn’t install proper drainage around her property when it raises the roads, it could overwhelm her pumps and dam with even more floodwater.
Five years ago, when the city first raised some roads in her neighborhood, Navarrete remembers going door-to-door and leaving a flier with her cell phone number on it at every home and business that would be affected. She said she got plenty of complaints but also heard from many people who couldn’t stand the flooding and needed a solution.
“I know people don’t like the road raising. I don’t like it either, but it’s like medicine. It tastes bad, but you need to take it if you want to get better,” she said. “If we don’t do anything then we’ll be Venice.”
©2021 Miami Herald. Distributed by Tribune Content Agency, LLC.
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