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Tampa Called Home Wrecker

Tribune photo by MICHAEL SPOONEYBARGER

David and Irene Smith say a city culvert running beneath their $360,000 South Tampa home has made it uninhabitable. They are now living in an apartment and are asking Tampa for compensation.

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By ELLEN GEDALIUS, The Tampa Tribune

Published: January 7, 2008

Updated: 01/06/2008 11:35 pm

TAMPA - A South Tampa couple says a cracked stormwater pipe near the foundation of their home has left their house uninhabitable and the city should be held responsible.

David and Irene Smith say a faulty culvert is cracking the foundation and the walls of their 1965 home. They are now living in an apartment.

They called the house on Fair Oaks Avenue their dream home, a place they wanted to renovate and care for foster children. Now, however, they are embroiled in a legal battle with the city. A hearing in their lawsuit, which was filed in circuit court, is scheduled for today. The case is scheduled for a jury trial in February.

Attorneys on both sides acknowledge the case could set a precedent and open the door for other homeowners in Tampa to sue.

"I can't say this is going to happen citywide, but it could," said Dick Schlosser, the Smiths' attorney. "These are crisscrossed through the whole city. To me, that would be the broader implication."

Gary Glassman, a senior assistant city attorney, said the Smiths' suit could have citywide implications.

"Because there are so many properties that have culverts under them and some are 80 years old or more, and we don't know the conditions of them, they could present some problems for the homeowner and the city," Glassman said.

City Says 'No' To Compensation

The city argues, however, the Smiths are not entitled to compensation in this case.

A culvert is essentially a conduit that allows stormwater to travel to the bay. Culverts run underneath streets and sometimes cut across residential lots.

Chuck Walter, director of the city's stormwater department, declined to comment on the case, but said culverts are "everywhere" in the city.

The couple bought the home in 2005, knowing a culvert ran underneath part of the property. Irene Smith said she and her husband asked the former owner whether she had any problems with it. The former owner, the Smiths said, had had no problems.

Irene Smith said she and her husband talked to the city about the culvert, focusing the discussion on whether the city could relocate it so the couple could install a pool. City officials said they could possibly move the culvert - at the Smiths' expense.

The Smiths purchased the house for $360,000. Soon after, David Smith was doing yard work and pulled up some bushes. That's when he found a giant hole.

The leaky culvert is washing away the dirt underneath the house, compromising its structure, Schlosser said.

The Smiths argue the city's refusal to remove and repair the culvert while it continues to damage their home means the city has essentially "taken" their home by damaging it. The legal concept is called inverse condemnation.

"The flooding caused by improper maintenance of the culvert has taken the Smiths' property, making it totally unusable," Schlosser said. "We want to be compensated for that."

City Attorney David Smith - no relation to David Smith, the Fair Oaks homeowner - confirmed the family had talked to the city about the culvert before purchasing the home. He said the city did some minor maintenance work on the culvert before the lawsuit was filed, but only at the request of the Smith family.

"They want us to knock down their house and build them a new house," the city attorney said. "The city is not going to do that. They knew what they were getting into."

Glassman said the city fixed the culvert. The Smith family said the fix didn't work.

Glassman said the city also isn't convinced the culvert caused the hole.

Mediation Didn't Work

The dispute went through a mediation process, but the two sides were far apart and no deal was struck. Attorneys will not disclose how much money the Smiths asked for during the private mediation meeting.

The city says that in the 1920s, the Interbay Drainage District installed a stormwater drainage system in southwest Tampa. The city didn't annex the area until 1953.

The district remained a separate entity and continued operating the stormwater drainage system until 1973, when the city took over.

In its legal filings, the city argues an inspection report the Smiths received before buying the home indicated possible foundation problems and suggested the culvert could be a contributing factor.

The city also argues the culvert was on the land before the Smiths bought the home and that, therefore, the couple is not entitled to compensation.

"Our culvert pre-existed the creation of their property," said Smith, the city attorney.

"I don't think that's valid, because we pre-existed them."

Reporter Ellen Gedalius can be reached at (813) 259-7679 or egedalius@tampatrib.com.

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