As local governments try to navigate the new world of sea level rise swamping their roads, one thing is clear. Whether they raise them or abandon them, someone is probably going to sue.
In Miami Beach, often called a laboratory for new policies to fight climate change, upset residents have threatened lawsuits over the city’s $500 million plan to raise roads and install pumps to keep neighborhoods dry.
In the Keys, where new cost estimates for street elevation have elected officials openly talking about abandoning some roads, officials are gearing up for the possibility of upset residents siccing lawyers on the county for refusing to flood-proof their roads.
With a projected increase of two feet of sea rise by 2060, this is uncharted territory for local governments, and the stakes are high.
Experts worry that local governments teetering between the possibilities of being sued for not doing enough or doing too much will be paralyzed into inaction.
“It has the potential to drive local government to an existential crisis,” said Thomas Ruppert, a lawyer and coastal planning specialist with Florida Sea Grant.
Lawyers say it’s a question of when, not if, these lawsuits are filed. A few years ago, Coral Gables hired Abby Corbett, a lawyer with Stearns Weaver Miller, to compile a white paper on the city’s potential liability under climate change. She found it’s a legal gray area that most courts haven’t dealt with yet.
“Hopefully the case law develops quickly so lawyers are discouraged from filing spurious suits,” she said. “But at the end of the day you can’t stop someone from suing.”
Raised Roads Bring Controversy
Residents in the tony Upper North Bay Road community fought back when the city tried to elevate their street and install pumps. They said the project would impact their home values and argued the street’s flooding wasn’t severe enough to warrant a drastic upgrade, although three temporary pumps are installed in the area.
Some said they’d call their lawyers if Miami Beach didn’t back off.
The pushback worked. The city agreed to re-evaluate the plan with more nature-based solutions, which effectively delayed construction for about six years.
But for upset residents in areas where the work is already done, it could get messier.
Decades ago, when it rained on Palm Island, Andres Asion said the yards of his two homes didn’t flood. Now they do. Asion, the founder of Miami Real Estate Group, blames the soggy front yards on the newly elevated street.
He finds the city’s suggested solution — hooking up drains to the city’s stormwater system on the lowest part of the property, as well as planting more water absorbent landscaping — burdensome and unfair.
“Why should I go through all this effort to do this when I haven’t had this problem for the last 40 years until you changed the road?” he said. “If what they’re doing doesn’t fix it and my property gets flooded of course I’m going to sue.”
Andres Asion, a Miami Beach broker, photographed his parents’ home on Palm Island after a rainstorm. He blames the floodwaters puddling around their door on the newly elevated road that’s now a higher elevation than his parents’ front door. CONTRIBUTED TO THE HERALD Edit | Remove
The installation of those storm drains has also been delayed by the need for county environmental permits, an issue that has drawn the scrutiny of the city’s inspector general. The city said it’s installed about 15 on both islands.
For the record, Miami Beach’s Chief Deputy City Attorney Aleksandr Boksner said there haven’t been any lawsuits filed or “credible accusations” against the city on the topic. Nor does be believe such an attempt would be legal.
City spokesperson Melissa Berthier wrote in a statement that “under the law, a property owner is responsible for dealing with stormwater on their property. We’re designing a system that is handling water in the public right-of-way. There should be no liability from the city.”
Florida's Past Property Rights Battles
Homeowners suing the government for impacting their property (known as a “takings” case) is nothing new in Florida. Residents of the so-called 8 1/2 Square Mile Area near the Everglades waged a decades-long legal battle — and won a compromise — when the government tried to take back their land for Everglades restoration.
What is new is the consideration of sea level rise. When that first lawsuit gets filed, judges won’t have any directly related cases to piggyback off of. Instead, they have to look for similar ones.
The most important such case, one that gives anyone who controls a city’s purse strings chills, is all about a lonely stretch of oceanfront road in St. John’s County, Florida. Over the years, a little under two miles of that road (known as Old A1A) was eroded by the sea. The three homes there couldn’t use the road anymore, so a new one was built further inland.
Twenty years later, the county allowed dozens more homes to sprout along the ruined road, and the county’s efforts to keep it usable proved futile as the Atlantic Ocean continued to wear away at Old A1A. In 2005, some of those homeowners sued the county to force it to maintain the road. The case pinged around in trial court (the county won) and appellate court (the homeowners won) before the state Supreme Court declined to review it further.
It was settled. According to the court, St. John’s County had a “duty to reasonably maintain” access to the road — even if the cost to fix the 1.6 miles of road annually was well over the yearly budget for the county’s thousand miles of road and bridges.
“I think this case is a real problem for local government,” Ruppert said. “If people start flooding and suing me, am I going to lose? Or do I spend the half billion dollars and bankrupt myself?”
Erin Deady, a Florida lawyer focused on climate and sustainability, called the St. John’s case a “non-decision decision,” because the final wording suggested the county could get in trouble for taking property by failing to maintain the road, but that the court didn’t officially say the county had done so.
“They said it could happen. They didn’t say it did happen, and that’s important,” she said. “We don’t honestly know what set of facts would be the right set of facts to say that government inaction rises to the level of a takings.”
Deady has spent the last seven years preparing Monroe County for this exact scenario. That means coming up with a temporary standard, passed by Monroe County in 2017, for how well the county will maintain roads under sea rise. As part of the county’s road raising study, consultants will determine a more precise standard.
“This is about managing expectations and being transparent about what’s going to be possible and not going to be possible,” Deady said. “You’re not going to be able to provide the same level of service in areas in the Keys where there’s all these differing areas of elevation.”
She and other experts worry that the St. John’s decision will scare off low-income governments across the state most vulnerable to sea level rise from investing in expensive and often controversial resilience projects.
Protection Vs. Harm
A common argument in these cases (one also heard in Miami Beach) is that these protective measures will negatively impact property values.
Deady’s go-to case on the topic is from New Jersey, where the government built a sand dune to protect coastal homeowners. One couple, their view newly blocked by the sand, compared the taking of their land to “Nazi Germany” and sued the government. The court agreed with their argument and said they deserved $375,000 for their lost value.
But the New Jersey Supreme Court flipped the decision, arguing that the protection value outweighed the lost property value. The couple was awarded a $1 in total.
“I think the law is evolving to say we have to look at the burden and the benefit of doing an adaptation project like that,” she said.
That tracks with a recent federal decision based on damage from Hurricane Katrina, which again pitted homeowners against the government. In this case, the residents saw worsened flooding from Katrina as a result of poor maintenance on the Mississippi River-Gulf Outlet channel.
At first, the court agreed with the people of St. Bernard Parish that the U.S. Army Corps of Engineers (the party responsible for the maintenance) was at fault. Then an appeals court flipped the decision and said that everything else the corps did to stem flooding overall in the region had to be taken into consideration.
This new decision contradicts the St. John’s County case, Ruppert said. Although it isn’t binding in Florida courts because it was a federal decision. It could be a factor in government lawsuits from upset residents.
“If the flooding is worse and the city can prove it’s sea level rise and not what they did, then they’re not liable, arguably,” he said. “You can’t just say did the road caused it and not pay attention to what the city is doing as a whole.”
This story was produced in partnership with the Florida Climate Reporting Network, a multi-newsroom initiative founded by the Miami Herald, the South Florida Sun Sentinel, The Palm Beach Post, the Orlando Sentinel, WLRN Public Media