Hersch – Spring 2023

Climate Change Infrastructure: People, Property, and Takings

Ellison Hersch

As municipalities implement infrastructure projects to mitigate and adapt to the effects of climate change they are expected to thread the needle between protecting the public good and protecting residents’ property and interests. Communities may need to sacrifice some private property to become more resilient in the face of new and worsening challenges. In some circumstances, the question may be asked if these projects are worth the billions of dollars to mitigate or if managed retreat is the right approach.

Coastal cities like Miami Beach, Florida are constantly facing the realities of climate change. As an island they are not only susceptible to the usual storm flooding common in South Florida, but also increasingly intense king tides and sea level rise.

In Miami Beach, 93 percent of buildings are located in FEMA designated Special Flood Hazard Areas.[1] These are high risk areas that are subject to inundation by the 1-percent-annual-chance flood event, or what is colloquially called a 100-year flood (a flood event that has a 1 in 100 chance of being equaled or exceeded in any given year).[2] Over 60 percent of the buildings in Miami Beach were constructed before FEMA Flood Insurance Rate Maps that require higher construction.[3] Investments have been accelerating in Miami Beach to elevate roadways and improve storm-drainage systems.

In 2014, Miami Beach started a Roadway Improvement Program where many streets were raised over a foot above the properties abutting them.[4] Miami Beach already faces problems of flooding from large storms and worsening king tides.[5] The island is expected to face over two feet of sea level rise by 2060.[6] While raising the roads is a first step to increasing resiliency and mitigating climate change, the process of raising the roads has negatively impacted some residents.

Improved roads can better the greater community, however, many of the older homes and structures in Miami Beach were not built with drainage systems that could withstand the new stormwater flow from these elevated roadways. Especially after hurricanes and large storm events, the water flow can inundate low lying homes. Exactly this occurred after the roadway improvement program raised 14th Street and West Avenue in Miami Beach. Tropical Storm Emily dropped inches of rain on Miami Beach affecting multiple structures on these streets. Two property owners in Miami Beach filed suit in state court and then removed it to federal court alleging inverse condemnation under the Fifth and Fourteenth Amendments of the United States Constitution and related state tort claims.[7] The pump stations connected to the roadway improvement failed and two structures flooded. Varcamp Properties, LLC, et al v. City of Miami Beach is a prime example of government intervention to face climate change impacting personal property.

In this case, the two properties were short term rentals classified as legally nonconforming uses; they had been grandfathered in and would no longer be able to keep their status as legally nonconforming after having to repair the flooding. City of Miami Beach Zoning Code Sec. 118-395 requires that structures be in continuous use and not need repairs costing over 50 percent of the value of the structure.[8] Varcamp Properties is alleging a taking due to the permanent flooding and deprivation of all beneficial use of the property.[9] These properties are not the main homesteads of the properties and may seem less sympathetic, but they are income for the owners. It is also unclear as to how many other properties in the area were affected. The barrier to bring a suit of this sort is high because of the time commitment and sluggishness of the court system.

Cases like this are likely to continue to be brought. Investments in climate resilient infrastructure are ramping up. These projects need to be started now or soon, while there is still a tax base that can afford them. Miami Beach has started a $100 million storm-water drainage improvement project and has $400 million projects in the pipeline.[10] Property buyers continue to come to Miami Beach because the flooding events still seem like a nuisance and not a catastrophe. The inevitable increase of flooding events and consequences of sea level rise will be detrimental without improvements to the infrastructure.

Municipalities will have to either start valuing private property more in their planning stages or be prepared to justly compensate property owners for takings. The 4th DCA in Florida ruled in 1968 that state construction causing flooding that is a permanent invasion on private property constitutes a taking.[11] The City of Miami Beach had no intention to push water flow into the Varcamp Properties and did not expect their pumps to malfunction during the tropical storm. Many cities, like Miami Beach, are in an in-between period where they are attempting to build infrastructure to adapt to the future reality, yet struggling to keep up with the weather events of today.

Is it worth the City of Miami Beach to pay just compensation and millions of dollars in infrastructure projects with people struggling through flooding events that will only get worse? Are funds better spent studying and working on managed retreat options or shoreline armoring instead? It is unclear how cities should be making these decisions and what role the courts will play.

Ellison Hersch is a Junior Editor with MJEAL. Ellison can be reached at ehersch@umich.edu.

[1]Interested in Resilient Construction on Miami Beach?, Miami Beach Rising Above, https://www.miamibeachfl.gov/wp-content/uploads/2020/01/Fact-Sheet-Resilient-Construction-12.2019.pdf (last visited Mar. 8, 2023).

[2] Federal Emergency Management Agency, Flood Zones, U.S. Department of Homeland Security, https://www.fema.gov/glossary/flood-zones#:~:text=SFHA%20are%20defined%20as%20the,flood%20or%20100%2Dyear%20flood (last updated July 8, 2020).

[3] Miami Beach Rising Above, supra note 1.

[4] Alex Harris, Miami Beach is raising roads for sea rise. Lawsuits say they’re causing flooding too, WUSF Public Media (Nov. 13, 2021), https://wusfnews.wusf.usf.edu/environment/2021-11-13/miami-beach-is-raising-roads-for-sea-rise-lawsuits-say-theyre-causing-flooding-too.

[5] Trent Kelly, King tide injures 6 near Miami Beach pier, WPLG Local 10 (October 22, 2022), https://www.local10.com/news/local/2022/10/01/king-tide-injures-6-near-miami-beach-pier/. 

[6] Harris, supra note 4.

[7] Varcamp Properties, LLC, et al v. City of Miami Beach, 1:22CV21371 (filed May 3, 2022).

[8] Miami Beach, FL., Code of Ordinances art. IX Nonconformances (2021).

[9]  Varcamp Properties, 1:22CV21371.

[10] Robert Meyer, Miami and the Costs of Climate Change, Wharton: Risk Management and Decision Process Center (2014), https://riskcenter.wharton.upenn.edu/miami-and-the-costs-of-climate-change/

[11]Kendry v. State Road Dept., 213 So.2d 23, 26-27 (Fla. 4th DCA 1968).

Leave a comment

Your email address will not be published. Required fields are marked *