News Column

When Climate Change and Property Rights Collide

November 25, 2013

Anthony Flint, Virginian - Pilot

Flooding in the wake of Hurricane Wilma in Key West, Fla. (Marc Averett, Creative Commons)

As coastal cities continue to face the potentially expensive threat of increasingly volatile weather, storm surge and sea level rise associated with climate change, building resilience has become a top planning priority. But resilience has multiple dimensions. It means not only building things, like flood gates and hardened infrastructure, but also keeping natural systems such as wetlands free of development - and, in many cases, deciding not to rebuild in the most vulnerable places. Therein lies an evolving and complex issue affecting private property rights.

From at least the turn of the 20th century, the Supreme Court has wrestled with a basic question: When does land use regulation constitute a taking, requiring compensation for property owners under the Fifth Amendment of the U.S. Constitution? Since the 1920s, the essence of the rulings has been that government has considerable leeway in its power to regulate land use.

In 2005 in Kelo v. City of New London, the high court affirmed the state's power to use eminent domain for economic development in the 21st century.

In June 2013, however, a decision on a Florida development project seemed to indicate a subtle shift in another direction. In Koontz v. St. Johns River Water Management District, the justices ruled 5-4 that government was overzealous in imposing mitigation requirements on developers as conditions for building permits.

Coy Koontz Sr., who had wanted to build a small shopping center on his property, objected to a Florida water management district's demands that he pay for off-site wetlands restoration to offset environmental damage caused by the construction. Koontz claimed that the requirements constituted a taking for exceeding a "rough proportionality" between the requirements and the scope of damages caused by the development. In 2011, the Florida Supreme Court rejected Koontz's argument, but in June the high court ruled that the mitigation requirements on the builder went too far.

The ruling alarmed some environmentalists and groups such as the American Planning Association, who feared new limits on the government's ability to control development and impose requirements to restore and conserve natural areas. The concern extended to coastal metropolitan regions preparing for the impacts of climate change, such as New York City, which in May proposed a model $20 billion plan that is a mix of strategies for living with water and keeping it out. Property rights experts speculated that developers could cite the Koontz case as justification to refuse to pay into a fund for such initiatives.

At a broader level, the question remains: After an event like Hurricane Sandy, is government within its rights to forbid rebuilding or to modify regulations in order to prevent new building? The legal answer is essentially yes, according to Jerold Kayden, an attorney and professor at Harvard University's Graduate School of Design.

Particularly as more data become available on sea level rise and storm surge, government has the legal right to restrict owners from building on a vacant lot that is subject to flooding and sea level rise or from rebuilding a home that has been destroyed. But, Kayden said, "politically, it's another story."

New York and New Jersey represent two different approaches to post-Sandy reconstruction. New York Gov. Andrew Cuomo and New York City Mayor Michael Bloomberg called for a mix of rebuilding and "strategic retreat," while New Jersey Gov. Chris Christie focused on allocating money to residents so they could rebuild on parcels battered by the storm - even when the property remained in harm's way.

The city of Boston, meanwhile, has begun to require waterfront developers to prepare for rising seas and storm surge by relocating mechanicals from basements to higher floors, among other measures.

While property rights lawsuits over reconstruction and restrictions on new building in coastal areas will no doubt continue to proliferate, Pratap Talwar, principal at the Thompson Design Group, has presented an alternative in long-range planning that could help prevent such conflicts from arising. He detailed the case study of Long Branch, N.J., which overhauled its planning process several years ago to include tougher standards but also a fast- track process for development that satisfied the guidelines. Long Branch, Talwar said, was the one mile of New Jersey shore that weathered Sandy relatively intact.

Anthony Flint is a fellow at the Lincoln Institute of Land Policy, a think tank in Cambridge, Mass. This column originally appeared in Land Lines magazine.

(c) 2013 ProQuest Information and Learning Company; All Rights Reserved.

Source: (c) 2013 ProQuest Information and Learning Company; All Rights Reserved.

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