Lawsuit seeks $844K in damages from 2015 flooding

Dec. 05--David Fishman keeps a folder behind his desk with emails and time-lapse images from surveillance cameras showing the progression of the flooding.

Flooding on Sept. 29, 2015, caused $30,000 in damage to two buildings that Fishman, vice president of Rosemont Management Company, owns in Frederick and affected eight businesses that rented space from Fishman.

The deluge also impacted about 75 percent of the nearly 400 units at Extra Space Storage on Industry Lane.

Fishman and other business owners have tried to determine who is responsible for maintaining a stormwater management pond that failed. The damage has left him with vacancies.

In October, Extra Space Storage's insurance company filed a lawsuit in U.S. District Court against the owners of the property where the pond is, Siena Corporation, for $844,000 in damages. Howard County-based Siena Corporation owns the ezStorage located on Grove Road.

Rodger O. Robertson, the attorney representing Siena Corporation, said the company doesn't accept responsibility for the damage. He said the case will involve expert testimony but he didn't elaborate.

Attorney Peter Rossi, who is representing the insurance company for Extra Space Storage, also declined to comment.

Fishman said if the case ends in favor of Extra Space Storage, he would hope to also get recourse for his damages, which would have been over $100,000 if he had hired a restoration company to complete repairs instead of doing them on his own, he said.

Fishman recalled that his office was flooded with 2 1/2 feet of water and that eight of his tenants saw similar damage, including VocalBoothToGo, which sells acoustic sound blankets, mobile vocal booths and acoustic and soundproofing products.

Employees were shuffling back and forth to a laundromat for days, trying to salvage some of the $70,000 worth of damaged inventory after the flood, Director of Operations Rachele Nichols said.

"We're still in the negative," she said Friday. "I don't think we're going to catch up anytime soon. We're still trying to stay afloat."

VocalBoothToGo sold damaged blankets at discounted prices and left the location for higher ground on an adjacent street. The small business was one of three businesses to leave the Rosemont Management buildings, Fishman said. One and a half of the units are still vacant.

"At this point we would be happy to be a part of anything to hold anyone responsible for all that we had to deal with," Nichols said.

The business, which is internet based, rented a warehouse on Industry Lane for five or six years, Nichols said. A year before the flood, the company had seen rapid growth so they opened an office near their warehouse.

VocalBoothToGo was expanding until the flood took a toll on its inventory. The business had plans to showcase its products in the office to more directly serve Frederick County and the Washington, D.C., area.

While it has regained its footing, the business is not where it could have been if the damage hadn't happened, Nichols said. She attributes having a good crew and help from others to its success in recovering.

"We're slowly coming back together," she said. "It's tough as a small business to bounce back like we did."

In January, VocalBoothToGo plans to launch its first mobile recording studio and hopes in the future to be able to open a location large enough to allow it to showcase its products and even let people record, she said.

The heart of the issue

Rosemont Management developed the industrial park in the late 1980s, and the buildings there had never had flooding before, Fishman said. Because the location isn't in a floodplain, Fishman said they didn't get flood insurance.

When the heavy rains hit on Sept. 29, 2015, a nearby stormwater pond, meant to collect, store and purify stormwater runoff, allowed more water to be directed downstream at once than it was designed to do, according to a county inspection after the flood.

Animal burrows near the pond weakened a barrier in the pond, known as a weir wall, that controls water flow and caused it to fail. Chief Inspector Rick Masser, with the county Department of Permits and Inspections, also noted in the report that debris had accumulated and affected the flow of the water.

The county requires any site over 5,000 square feet to have a stormwater management plan, and the county inspects the stormwater devices every three years, Masser said. But the property owners should be inspecting it themselves about once a month and after every storm, he said.

"When we get there, we can kind of tell if they've been checking it themselves," he said. "The pond itself, if I had to come right out and say it, no, it was not maintained as well as it should have been."

He said on one side of the pond the property owner was letting the grass grow too long and then cutting it to the point that it was "like they threw several bales of straw" into the pond. Masser said that "absolutely" contributed to the failure of the dam.

"Stormwater management ponds are not flood control," he said. "If the dam hadn't failed I believe [water] would have built up slower, but I believe the damage would have been the same."

The last triennial inspection of the pond was in July 2015, in which a different inspector said the stormwater pond had passed the inspection but recommended the embankment be mowed.

Fishman said he and others always assumed the county or state owned the stormwater pond. But Masser said the county only owns and maintains about a dozen.

Fishman said he's working with Extra Space Storage to make sure contributing factors that added to the flood don't repeat themselves.

"An ounce of prevention is worth a pound of cure," he said.

The industrial park still doesn't have flood insurance, as Fishman hopes preventative measures he's taken will guard against a reoccurrence. But, every time there's a heavy rain, he fears it will happen again, he said.

"My feeling is I'll never see a dime," Fishman said. "And I'll just see it as a loss. Sometimes you have to cut your losses and move on ... . We're still hopeful there will be a resolution in our favor."

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