BLOOMINGTON — Some say it was climate change. Others pin it on God. Most blame the city.
Depending on whom you ask, accountability varies for the damage sustained by Bloomington homes after radical storms that dropped nearly a foot of water across two days led to severe surface flooding and water backing up from city-owned sewer into basements.
But one point is clear: More than a month after the June 25-26 extreme weather events, nearly all of the more than 500 Bloomington residents who experienced and reported losses have yet to be compensated for them.
What’s more, after five separate public discussions over the scope of the damage and paths for future infrastructure repairs, city leadership has yet to codify a plan for financial assistance for victims of the storms.
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“That is just not acceptable,” said William Mahrt, a Bloomington-based attorney who is exploring whether there’s enough ground to pursue a legal challenge against the city. “They owe these residents money and they need to pay it.”
Mahrt, a sole practitioner, said he sustained up to $20,000 worth of damages to his own home near Miller Park, on the city’s southwest side. He’s also fielded reports from other residents who said they incurred damages of $50,000.
If there are enough victims with sound enough claims, Mahrt might file class action lawsuits on behalf of residents living in east-side, west-side and south-side neighborhoods, with the goal of reaching a financial settlement with the city, he said.
“Different claims are going to have different strengths,” Mahrt said, adding that he’s assembled at least a dozen that have merit.
But reaching a settlement, he said, will depend on if he can prove that city officials were negligent in their knowledge of dysfunctional sewers.
“I just can’t imagine that it’s reasonable that any amount of sewage backing up doesn’t translate to negligence,” Mahrt said. “If you’re negligent in a small amount, then when that negligence causes a giant catastrophe you’re clearly responsible.”
Knowledge of sewer problems key to proving negligence
The city’s 2014 stormwater and sanitary sewer master plan concluded that “some of the infrastructure installed as part of the (city’s) expansion is deteriorating to a point where it is not providing an adequate Level of Service.”
The same plan also includes a map and list of 55 “problem areas,” from basement and street-level flooding to drainage issues, identified by city staff.
It further features results of a survey that asked residents across the city about their experience with basement flooding and sewer back-ups during storms. Many homeowners in the city’s oldest neighborhoods said they regularly deal with both issues when it rains.
“My basement has one floor drain and every time it rains I can depend on it backing up into the basement,” one resident who lives on Lee Street wrote in the survey. “It takes a few days to go down.”
City officials did not respond to a question from The Pantagraph asking were they to be deposed as part of litigation, would they swear under oath that they have no knowledge of dysfunctional sewers.
That distinction is at the heart of denial letters sent by PMA Insurance to residents who filed claims against the city, according to copies reviewed by The Pantagraph.
“A municipality might be liable where it is on notice of a defective condition of its property, such as a sewer, and fails to properly maintain the property,” Scott Bittner, a senior account claims representative for PMA, wrote in the letters.
Reached by phone this week, Bittner deferred all questions back to PMA. The insurance company, which is owned by Old Republic Insurance Group, did not respond to The Pantagraph’s request for comment.
Bloomington corporation counsel Jeff Jurgens in a statement to The Pantagraph said the city told residents to file claims with PMA so that “each claim could be evaluated and any unique facts explored.”
The claims, Jurgens added, “were not pre-judged by the City, rather we relied on the recommendations and fact finding of our third-party administrator and legal counsel.”
“The City is aware some individuals disagree with this determination and they may try to file a lawsuit against the City for damages,” Jurgens said. “The City does not comment on litigation and cannot speculate on any such claims.”
City protected under ‘act of God’ designation
The city’s immunity from being held liable for the storm-related sewer back-ups, the PMA denial letters state, falls under an “act of God.”
“… A municipality is generally not liable for damages caused by extraordinary weather events, sometimes colloquially referred to as an ‘act of God,'” the letters read. “Given the extraordinary storms and rainfall which occurred in Bloomington, particularly on the night of June 25, it appears that the sewer backups and other injuries were caused by an extraordinary event and not by any misconduct or failure on the part of the City.”
Mahrt said he “doesn’t buy” that reasoning, and he hopes “a court doesn’t buy it.”
Nonetheless, Mahrt added that he’d prefer the city provide settlements to flood victims without litigating their case in court.
For that to take place, however, the city will need to compile a total cost of damages.
But that’s not currently possible, according to Jurgens, because PMA representatives did not visit individual residences to assess damages.
“Since it was determined that the City did not have any liability for the property damage associated with the extreme rainfall event, it was unnecessary for claims adjustors to do site visits,” Jurgens said. “The City therefore does not have an estimate for the total amount of property damage caused by the event within the City. This is something we are working to estimate, but any number will be speculative.”
If that figure holds, then each of the more than 500 residents who filed a claim could be entitled to a payout of at least $7,000.
Ward proposes ‘near-term’ financial aid plan
Where the funding for those payouts might come from, if the city were to reach a settlement with residents, isn’t clear.
The city has at least $26.5 million sitting in its reserves, and is slated to receive $13.95 million in American Rescue Plan Act funds. City finance officials have previously said those dollars could be spent to repair sewer infrastructure or cover damages caused by the storms.
“Near-term financial assistance” could also be distributed to residents under an initiative introduced this week by Ward 7 Ald. Mollie Ward.
City staff would need to sort out the details, but the plan is the only formal measure put forward by elected officials to give victims aid to repair damage caused by the storms.
“The way I see it there are two issues: one issue of course is dealing with the combined sewer overflows, which I’ve been hearing about that before being elected to council. That is a long-term issue that is going to take years to solve,” Ward told The Pantagraph. “But in the meantime we have people in houses who are living in what most people would not call livable conditions. They need help.”
Ward said she would like to see the city provide financial assistance for people “in terms of weeks or months, not years.”
Her initiative is on the agenda for Monday’s committee of the whole meeting, where council will vote on whether city staff should pursue it.
Ward said she thinks fellow council members will support the city developing a plan to distribute aid, in whatever dollar amount.
“And I’m not trying to imply that handing out money to clean up people’s basements is the end all of this conversation,” Ward said. “There’s more that needs to be addressed here. But this piece can’t get lost in that.”
Ward also said she would support using ARPA dollars to help residents, but doesn’t want to spend COVID-19 relief funding all in one place.
“There are lots of needs that could address,” Ward said. “I want us to stay open to those needs.”
SBA loans still available
Until the city comes up with a plan to deal out aid, residents and business owners can apply for a low-interest disaster loan through the Small Business Administration.
As of Wednesday, the SBA has received 59 applications for a loan. Of those, 54 were from homeowners and renters and five were from business owners, according to figures provided by Janel Finley, a public affairs specialist with the SBA’s Office of Disaster Assistance.
Finley said 19 loans, 16 for homeowners and three for businesses, had been approved, providing a total of $592,100 in funding. That breaks down to about $31,000 per loan.
Another 19 loans were in processing as of Wednesday, Finley said.
The deadline to apply for physical property damage caused by the storms is Sept. 24. Homeowners and business owners also have until April 26, 2022, to apply for economic loss loans.
Both sides of Interstate 55 in McLean County opened Saturday afternoon after at least 16 hours of road crews working to mitigate flooding and collapse caused by heightened water levels of nearby Timber Creek.
The watch stretches through most of Central Illinois, covering Christian, De Witt, Logan, Macon, Mason, Menard, Sangamon, Shelby, Tazewell and Woodford counties. It also is in place for East and West Central Illinois, including Cass, Champaign, Douglas, Morgan, Moultrie, Piatt, Scott and Vermilion counties.
As of 9 a.m., the McLean County Emergency Management Agency said roads near the Mackinaw River or that abut nearby creeks are to be avoided because of standing or moving water caused by severe storms overnight.
Portions of Interstate 55 near McLean have reopened after extensive flooding Friday night and Saturday morning.
A flood warning is in effect for McLean County until 2:15 p.m. Saturday and a flash flood watch is in place until 7 a.m. Sunday, according to the National Weather Service.
Pantagraph journalists spread across the region Saturday to capture video of floodwaters from overnight storms.
Readers submitted the following images of flooding Friday and Saturday. Submit yours here.
Contact Timothy Eggert at (309) 820-3276. Follow him on Twitter: @TimothyMEggert