Property Owners Sue Miami Beach Over Flooding They Say is Caused by Roadway Elevation

One of the most controversial aspects of Miami Beach’s efforts to mitigate the impact of sea level rise – roadway elevation – is being challenged in court. Varcamp Properties LLC and JV Holdings 1400 LLC which own two properties on the corner of West Avenue and 14th Street claim recurring flooding as a result of the elevation of 14th Street has substantially impacted their ability to use the properties and will eventually cause permanent damage to the structures’ foundations. 

The properties at 1400 West Avenue and 1315 14th Street both contain two story-residential structures currently being used for short-term rentals. The building on West Avenue was constructed in 1938 and the one fronting 14th was built in 1929. (Photo above: Corner of 14th and West. Building at 1400 West is partially in view.)

According to Miami-Dade County property records, 1400 West was purchased in 1998 for $240,000 and transferred into Varcamp Properties LLC in 2017 at a price of $250,000 by “affiliated parties”.  The previous owner was Jeannette Varela. Members of the LLC are Luis Varela, Angelica Varela, Bryan Campbell, and Karen Campbell. The same group also makes up JV Holdings 1400 LLC which purchased 1315 14th Street in June 2014 for $975,000 from Spring-Pallant Insurance.

The suit is an “action for inverse condemnation, takings under the United States Constitution and takings under the State of Florida Constitution.” Attorneys for the plaintiffs are Thomas Robertson, Nicholas Rodriguez-Caballero, and Emily Balter of Bercow Radell Fernandez Larkin & Tapanes.

According to the legal filing, the drainage systems on the properties “were designed to overflow onto 14th Street and West Avenue. This was the common method of stormwater management at the time the Properties were developed.”

However, in 2016 when the City implemented its new stormwater program for the area which included elevating the roadway, the suit claims, “The design and construction of the Roadway Improvements failed to consider the impacts that drastically changing the elevation of the roadway would have on the Properties’ drainage ability, causing stormwater from 14th Street and West Avenue and adjacent properties to be redirected onto the Properties” without “the ability to redirect excess stormwater onto 14th Street and West Avenue.”

Since then, the property owners say there have been instances when flood waters have entered the two buildings. Following one such event in August of 2017, several inches of water took several days to recede, the suit states. Subsequently, the owners say they “learned that the stormwater system associated with the Roadway Improvements, which consists of certain pump stations in the vicinity of the Property, had failed, causing flooding of the Properties.”

“Again, in June 2020 and February 2021, the stormwater system associated with the Roadway Improvements failed causing flooding and damages to the Properties,” the lawsuit states.

The owners say the properties did not flood prior to the roadway elevation but now “during moderate to severe rainfall events, several inches of water enter the habitable spaces of the Properties, making the Properties uninhabitable. Further, each time the Properties flood following the Roadway Improvements, the structural foundation of the Properties is damaged.”

“The flooding caused by the Roadway Improvements is reasonably expected to recur, as flooding occurs during each moderate to severe rainfall event. Eventually the on-going flooding will damage the foundation of the Properties to the point where the existing structures on the Properties will collapse or be rendered permanently uninhabitable,” the filing claims.

The owners say, “The City’s stormwater management system associated with the Roadway Improvements does not prevent, or even mitigate, flooding of the Properties caused by the Roadway Improvements,” a condition that “has the immediate threat of becoming a permanent, reocurring condition if not remedied.”

“The on-going nature of the flooding deprives Plaintiffs of substantially all reasonable and beneficial use of the Properties,” they claim.

“The City knew or should have known that the Properties were legally designed to drain onto 14th Street and West Avenue yet took no steps to harmonize the Roadway Improvements with the Properties’ drainage system, or otherwise ensure the Roadway Improvements would not rescind the Plaintiffs’ drainage rights or consider how the changed elevation would redirect the City’s stormwater to the Properties,” according to the filing.

The right to continue short-term rentals on the properties was grandfathered in after the City prohibited them, making the properties legal, non-conforming short-term rentals. Any redevelopment of the properties, presumably to mitigate flooding, “would force the Plaintiffs to forgo grandfathered status to operate as a short-term rental.”

“Consequently, the City’s action has caused permanent flooding on Plaintiffs’ Properties, eliminated the Properties’ long-held drainage rights without compensation, and deprived Plaintiffs of all beneficial use of the Property,” the filing states. “The City will not permit Plaintiff’s to develop the Properties without forgoing the right to grandfathered permitted uses – specifically grandfathered short-term rentals.” And that is what sets up the basis for the case.

Citing legal precedent, the attorneys write, “Florida law has long held the ‘[c]onstruction by the state which causes flooding on abutting private property may constitute a taking where flooding is a permanent invasion of land amounting to an appropriation.’” The flooding on the property which they say is caused by the road work, “impairs all beneficial use of the Properties such that it amounts to an appropriation.”

“Generally, a permanent physical occupation authorized by government is a taking without regard to the public interest that it may serve” and “government-induced flooding, even if seasonal or temporary in nature, can constitutes [sic] a taking,” the attorneys stated, again citing case law.

“The Properties cannot be used for any purpose when flooding causes several inches of water to enter the habitable spaces of the existing structures. Even between flood events, the unpredictability of the next flooding event renders the Property virtually useless and without value,” according to the suit. “The persistent flooding destroys the viability of the Properties’ legally nonconforming short-term rental uses, and causes dangerous wet conditions through the Properties and inside the existing structures.”

Because the flooding caused by the roadway improvements “occurs and will continue to occur every time there are moderate to severe rainfall events,” the lawsuit says it “amounts to a compensable taking [under the] Florida Constitution, as a permanent occupation of the Properties that deprives Plaintiffs’ of all beneficial use without compensation during and following each moderate to severe rainfall event.”

“It was foreseeable that the Roadway Improvements would cause the Properties’ drainage system to fail and cause damage to the Properties,” the suit claims. “Water flows from high elevation to low elevation. When the City changed the elevation of the Roadway to be higher than the habitable spaces of the existing structures, it was foreseeable that stormwater would flow from the higher elevation roadway to the lower elevation Properties. The City failed to account for the volume of water that would flow from the adjacent roadways to the Properties as a result of the Roadway Improvements.”

“The City’s Roadway Improvements and resulting reoccurring flooding of the Properties deprives Plaintiffs of the beneficial enjoyment of the Properties and deprives Plaintiffs the ability to redevelop the Properties without losing their vested right to short-term rentals, which results in a government taking subject to inverse condemnation claims,” the filing says.

The owners are asking the court to “determine the value of the taking, and to grant the Plaintiff’s claims for inverse condemnation.” They’re also seeking damages for lost business and injunctive relief to require the City to allow the properties to drain overflow into the City’s stormwater system “in the same fashion and quantity as it did historically.”

This is not the first time the City has been sued over its stormwater program. City spokeswoman Melissa Berthier said, “We have had at least two flooding/elevation cases and both have been dismissed.” The City has not yet been served with this latest lawsuit, she said. 

The West Avenue improvement project that is the subject of this suit is actually Phase I of a larger project that was stalled following the 2017 election when then newly elected Mayor Dan Gelber and Commissioner Mark Samuelian called for further study of the City’s stormwater program. 

Following a review by the Urban Land Institute (ULI) – which generally praised the City’s efforts but suggested a greater emphasis on aesthetics, use of blue and green infrastructure, and a communications strategy that increases trust and transparency – the West Avenue project went through the Resilience Accelerator, a joint initiative of 100 Resilient Cities and Columbia University, which had as its premise kickstarting projects from design to action. Community members who had objected to a lack of focus on above-ground aesthetics worked with City staff to create a blueprint for moving forward.

Phase II was not approved by the City Commission, however, until October of last year when a dispute over the location of a large above-ground auxiliary power generator was resolved. Construction has not yet begun. According to the City’s website, Phase II is still in the design phase.