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Natural Hazard Mitigation Association www.nhma.info 1 Fort Collins Poudre River Floodplain Regulations Open House November 18, 2010 Edward A. Thomas, Esq. edwathomas@aol.com 617-515-3849
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  • Natural Hazard Mitigation Association

    www.nhma.info

    1

    Fort Collins

    Poudre River Floodplain Regulations

    Open House

    November 18, 2010

    Edward A. Thomas, Esq.

    edwathomas@aol.com617-515-3849

  • Natural Hazard Mitigation Association

    www.nhma.info

    Good Day! I appear today with thoughts from:

    The Natural Hazard Mitigation Association

    The Natural Hazard Center of the University of Colorado

    The Association of State Floodplain Managers

    This is not and cannot be legal advice

    This is a statement of general principles of ethics, law

    and policy

    2

  • Natural Hazard Mitigation Association

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    Why do we have government?

    Any ideas?

    3

  • Natural Hazard Mitigation Association

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    Fundamental Consideration

    Allocation of responsibility for safe and

    sustainable development:

    Government

    Business and Industry

    Individuals

    4

  • Natural Hazard Mitigation Association

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    5

    Key Themes We Need To Think Broadly To Solve Our Serious Problems

    We Must Stop Making Things Worse

    Right Now We Have A System Which Rewards Dangerous

    Behavior

    We Need To Remove Bad Incentives, Reward Good

    Planning, Safe Building, and Safe Reconstruction

  • Natural Hazard Mitigation Association

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    6

    What is a Disaster?

    Loss of a Job?

    Loss of Ones Home?

    Loss of a business or industry?

    Loss of a Community Facility?

    Widespread Loss of Power?

    Wildfire?

    Blizzard?

  • Natural Hazard Mitigation Association

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    7

    What is a Disaster?

    Its All a Matter of Perspective

    Victim

    Local Community

    State

    Federal Government

  • Natural Hazard Mitigation Association

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    8

    Must an Event be a Disaster?

    Preparation

    Individual Insurance

    Disaster Kit/Plan

    Ones Community

    Disaster resistant building codes/zoning

    Pre-Disaster Mitigation

    Mutual Assistance compacts

    Disaster Contingency Planning

    Volunteers the Citizens Corps

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    9 9

    To Set the Stage For Our Discussion

    Lets discuss some basics of Law

    In the Law-especially criminal law- Attorneys often

    seek to identify someone else to take the blame

    For increased flood damages that Someone Else is

    often

  • Natural Hazard Mitigation Association

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    10 10

    Mother Nature

  • Natural Hazard Mitigation Association

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    11 11

    Does Nature Cause Disasters?

    Dr. Gilbert White, the late, great, founder of the

    internationally recognized Natural Hazards Center,

    headquartered in Colorado, stated the facts:

    Floods are Acts of Nature; But Flood Losses Are

    Largely Acts of Man

  • Natural Hazard Mitigation Association

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    12 12

    Can We Agree?

    Among the Most Clear Lessons of The Horrific Floods

    of this Decade:

    There Is No Possibility of A Sustainable Economy

    Without Safe Locations for Business and Industry to

    Occupy

    We Need Safe Housing for Employees to Work at

    Businesses and Industry to Have an Economy at All

  • Natural Hazard Mitigation Association

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    13 13

    Trends in Flood Damages

    Flood losses and reported flood heights

    are increasing

    Demographic trends indicate great future

    challenges

  • Natural Hazard Mitigation Association

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    14

    Demographic Projection: Colorado Population in 2050

    Citation:A 2050 VISION FOR COLORADO'S WATER SUPPLY FUTURE

    Authors: Nicole Rowan, CDM, Susan Morea, CDM , Eric Hecox, Colorado Water Conservation Board

    Colorado's population is expected to nearly double by 2050.

    Where Will These Folks Wish to Live?

  • Natural Hazard Mitigation Association

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    15

    $6 billion annually

    Four-fold increasefrom early 1900s

    Per capita damages increased by morethan a factor of 2.5 inthe previous century inreal dollar terms

    In the 2000s Think About Nashville, Atlanta, the Red River of the North

    ASFPM Analysis of Trends in Flood Damages

    $2.2

    $2.9$2.4

    $3.4$2.2

    $4.9$3.3

    $5.6$25

    $2.0

    0 5 10 15 20 25 30

    1910s

    1920s

    1930s

    1940s

    1950s

    1960s

    1970s

    1980s

    1990s

    2000s

    Billions (adjusted to 1999 dollars)

  • USACE Slide courtesy of Pete Rabbon

  • All Shareholders Can Also Contribute to Increased Risk!

    Residual Risk Can Be Increased

    RISK

    Vastly Increased

    Residual Risk

    Initial Risk

    Critical Facilities Not Protected

    From Flooding

    Levees Not Properly

    Designed/Maintained

    Lack of Awareness of Flood Hazard-Lack of

    Flood, Business Interruption, DIC Insurance

    Increased and more Costly

    Development

    No Warning/Evacuation Plan- or A

    Poorly Developed and Exercised Plan

    Fill in floodplain or Wildfires

    Increases Flows

    17

  • Natural Hazard Mitigation Association

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    18 18

    Central Message

    Even If We Perfectly Implement Current

    Fort Collins Higher Floodplain Regulations,

    Damages Will Continue or Increase.

    Remember, we have done a number of positive things, both non-structural and structural, butWell discuss why that is

  • Natural Hazard Mitigation Association

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    19

    But There Is Hope!

    Association of State Floodplain Managers No Adverse

    Impact concept and message

    New and exciting APA and ABA awareness and initiatives

    Ongoing Fort Collins Activities

    Colorado Water Conservation Board Initiatives

    Improved FEMA Flood Mapping Program-Risk MAP

    The formation of the National Hazard Mitigation

    Collaborative Alliance

    Formation of the Natural Hazard Mitigation Association

  • Natural Hazard Mitigation Association

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    20

    Paul Farmer: Executive Director of the

    American Planning Association

    June 2009

    APA's Hazards Planning Research Center is currently

    preparing FEMA-funded best practice materials showing

    how hazard-mitigation and adaptation plans can be

    integrated into comprehensive planning efforts at all

    scales from the neighborhood to the region.

    This Document Has Just Been Released and Is Available

    Excellent in My Opinion

  • Natural Hazard Mitigation Association

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    American Bar Association Resolutions 107 A-G

    Adopted by the ABA House of Delegates

    January 2009

    21

    coverages

    Summary of Resolution 107 E

    The following recommendations of the Financial Services Round Table Blue

    Ribbon Commission on Megacatastrophes are highly desirable loss mitigation

    suggestions:

    State of the art building codes

    Cost-effective retrofitting

    Land use policies that discourage construction posing high risk to personal safety

    or property loss.

    Property tax credits to encourage retrofitting

    These and related elements of loss mitigation are designed to ultimately bring to

    market affordable insurance policies with broadened coverages.

  • Natural Hazard Mitigation Association

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    22 22

    Why Are Floods Getting Worse?Fundamental Misunderstandings:Where is the Floodplain?

  • Natural Hazard Mitigation Association

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    23

    Special Flood Hazard Area

    If you prevent floodplain fill,you keep existing development safe.

  • Natural Hazard Mitigation Association

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    24

    Large areas of thefloodplain are filled

    and developed.

    Fill

  • Larger Special Flood Hazard Area After Filling

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    26 26

    Flood Heights May Increase Dramatically

    More Than a Half-foot Even in Fort

    Collins!

    Other factors may well cause a significant increase in

    flood Heights

    Legally permitted fill and encroachments

    Wildfires

    Debris Blockage

  • Serious Public Safety Issues

    Deeper and Higher Water Results?

  • Natural Hazard Mitigation Association

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    Safe Development Is Affordable

    The American Institutes for Research has conducted a

    detailed study on the cost of floodproofing and

    elevation

    That study supports the idea that elevation and

    floodproofing costs add very small sums and have a

    significant societal payback

    The Multihazard Mitigation Council, a group which

    includes private industry representatives, reports that

    hazard mitigation has a proven 4-1 payback

    28

  • Natural Hazard Mitigation Association

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    The Choice of Development or No

    Development is a False Choice!

    The Choice We Have as a Society is Rather Between:

    1. Well planned development that protects people and

    property, our environment, and our precious Water

    Resources while reducing the potential for litigation; or

    2. Some current practices that are known to harm people,

    property, and natural floodplain functions-

    and may lead to litigation

    and other challenges 29

  • Natural Hazard Mitigation Association

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    Why Are Governments Not Acting

    To Prevent Harmful Development?

    NOAA Just Completed A Study Which Surveyed Planners

    As To Impediments To Safe Development

    Two Major Reasons Cited:

    Fear of the Taking Issue

    Economic Pressure30

  • Natural Hazard Mitigation Association

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  • Natural Hazard Mitigation Association

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    32

    When One Group Pays Maintenance or

    Replacement of Something Yet Different Person or

    Group Uses That Same Something, We Often Have

    Problems

    Disaster Assistance Is An Classic Example of

    Externality

    Who Pays For Disaster Assistance?

    Who Benefits?

    Reason #1 For Insufficient Standards:

    Economics and Externality

  • Natural Hazard Mitigation Association

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    Who Pays For Disaster Assistance?

    Costs of flooding are usually largely borne by:

    a) The Federal and Sometimes the State Taxpayer

    Through IRS Casualty Losses, SBA Loans,

    Disaster CDBG Funds, and the Whole Panoply

    of Federal and Private Disaster Relief

    Described in the Ed Thomas and Sarah Bowen

    Publication "Patchwork Quilt (Located at:

    http://www.floods.org/PDF/Post_Disaster_

    Reconstruction_Patchwork_Quilt_ET.pdf

    b) By Disaster Victims Themselves

  • Natural Hazard Mitigation Association

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    34 34

    Cui Bono? (Who Benefits?)

    From Unwise or Improper Floodplain Development-

    a)Developers?

    b) Communities?

    c) State Government?

    d) Mortgage Companies?

    e) The Occupants of Floodplains?

    Possibly in the short-term, but

    definitely NOT in the long- term

  • Natural Hazard Mitigation Association

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    35 35

    Why Should Government Do

    Something About This?

    Fundamental Duty

    Protect The Present

    Preserve A Communitys Future

  • Natural Hazard Mitigation Association

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    36 36

    Why Should Everyone

    Care About This?

    In a Word:

    Liability

  • Natural Hazard Mitigation Association

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    37 37

    Litigation for Claimed Harm Is Easier

    Now Than In Times Past

    Forensic Hydrologists

    Forensic Hydraulic Engineers

  • Natural Hazard Mitigation Association

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    38

    Three Ways to Support Reconstruction

    Following Disaster Damage

    1. Self Help: Loans, Savings, Charity, Neighbors

    2. Insurance: Disaster Relief is a Combination of

    Social Insurance and Self Help

    3. Litigation

    The preferred alternative is

    To have NO DAMAGE

    Due to Land Use and Hazard Mitigation

  • Natural Hazard Mitigation Association

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    39 39

    Lincoln, Nebraska

    Flooded Homes May Cost City MillionsCity Held Liable Damages Still To Be Determined

    Photo: Lincoln Star Journal

  • Natural Hazard Mitigation Association

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    40 40

  • Natural Hazard Mitigation Association

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    Short Legal Summary from Colorado

    City owed a duty to landowner not to interfere with

    natural flow of river, either by plan of improvement

    adopted, or by a failure to maintain it such that flood

    burden on land was greater than if channel were left in

    natural state.

    Denver v. Pilo, Supreme Court of Colorado, 102 Colo. 326;

    79 P.2d 270 (1938)

    41

  • Natural Hazard Mitigation Association

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    42 42

    Reason #2 Why Safer Standards Are Not

    Implemented:

    Concerns About A Taking

  • Natural Hazard Mitigation Association

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    Increase in Cases Involving Land Use

    There has been a huge increase in Taking Issue Cases,

    and related controversies involving development

    Thousands of cases reviewed by Jon Kusler, me and

    others

    Property Owners and Government are vastly more

    likely to be sued for undertaking activity, or

    permitting others to take action which causes harm

    than it is for strong,

    fair regulation

    43 43

  • Natural Hazard Mitigation Association

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    44 44

    Taking Lawsuit Results:

    Regulations clearly based on

    Hazard Prevention and fairly

    applied to all: successfully held to

    be a Taking almost none!

    Many, many cases where

    communities and landowners held

    liable for harming others

  • Natural Hazard Mitigation Association

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    45 45

    Can Government Adopt Higher

    Standards

    Than FEMA Minimums?

    FEMA Regulations Encourage Adoption of Higher

    Standards- any floodplain management

    regulations adopted by a State or a community

    which are more restrictive than (the FEMA

    Regulations) are encouraged and shall take

    precedence. 44CFR section 60.1(d). (emphasis

    added)

  • Natural Hazard Mitigation Association

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    46 46

    Hazard Based Regulation And The Constitution

    Hazard Based Regulation Generally Sustained

    Against Constitutional Challenges

    Goal of Protecting the Public Accorded

    ENORMOUS DEFERENCE by the Courts

  • Natural Hazard Mitigation Association

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    47 47

    Recent Major Federal Court Cases

    San Remo Hotel v. City and County of San

    Francisco, U.S. Supreme Court No. 04-340 decided

    June 20, 2005.

    Kelo v. New London, US Supreme Court, No.04-

    108, Decided June 23, 2005.

  • Natural Hazard Mitigation Association

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    48 48

    Susette Kelo

  • Natural Hazard Mitigation Association

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    49 49

    Susette Kelos House

  • Natural Hazard Mitigation Association

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    50 50

    Extremely Important US Supreme

    Court Case

    on Takings

    Lingle v. Chevron, US Supreme Court No. 04-163

    Decided May 23, 2005

  • Natural Hazard Mitigation Association

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    51 51

    Here Is The Gas Station In Lingle

  • Natural Hazard Mitigation Association

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    52 52

    In Lingle, The Supreme Court States

    How To Determine If There Is A

    Taking I

    Physical Intrusion See, Loretto v. Teleprompter

    Manhattan 458 US 419 (1982);

  • Natural Hazard Mitigation Association

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    53 53

    Loretto Apartment

    Building:

    Physical Intrusion

  • Natural Hazard Mitigation Association

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    54 54

    In Lingle, The Supreme Court States

    How To Determine If There Is A

    Taking II

    Total, or Near Total Regulatory Taking. See, Lucas

    v. South Carolina Coastal Council 505 US 1003

    (1992);

  • Natural Hazard Mitigation Association

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    55 55

    Lucas Sites Pre-Development

    William A. FischelDartmouth College

  • Natural Hazard Mitigation Association

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    56 56

    Lucas From Street

    William A. FischelDartmouth College

    William A. FischelDartmouth College

  • Natural Hazard Mitigation Association

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    57 57

    Lucas Area

    William A. FischelDartmouth College

  • Natural Hazard Mitigation Association

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    58 58

    Lucas Extinguishing Legitimate Investment Backed Expectations

  • Natural Hazard Mitigation Association

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    59 59

    Lucas Post Development of One Lot; Now Both Lots

    William A. FischelDartmouth College

  • Natural Hazard Mitigation Association

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    60 60

    In Lingle, The Supreme Court States

    How To Determine If There Is A

    Taking III

    A Penn Central Taking. See, Penn Central v.

    City of New York 438 US 104 (1978);

  • Natural Hazard Mitigation Association

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    61 61

    Grand Central Station, New York

    Photo Used With Permission of R. Murphy; "GNU Free Documentation License".

  • Natural Hazard Mitigation Association

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    62 62

    Grand Central Station, New York

  • Natural Hazard Mitigation Association

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    63 63

    Grand Central, With New Design

  • Natural Hazard Mitigation Association

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    64 64

    Transfer Of Development Rights

    Preservation Zone

    Area of identified important

    natural, cultural, or farmland.

    Generally the area is zoned with

    low development density potential

    (1 unit per 5 acres, for example).

    Transfer Zone

    Identified growth area. Developer

    can increase the allowable density

    through purchasing development

    rights from a property owner

    located in the preservation zone.

    Transfer of

    Development Rights

  • Natural Hazard Mitigation Association

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    65 65

    In Lingle, The Supreme Court States

    How to Determine If There Is a

    Taking IV

    A land use exaction which has little or no relationship

    to the property. In Summary: little or no

    relationship between the exaction and the

    articulated government interest. (Nollan; and Dolan)

  • Natural Hazard Mitigation Association

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    66 66

    Nollan House From Road

  • Natural Hazard Mitigation Association

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    67 67

    Nollan House From Beach

  • Natural Hazard Mitigation Association

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    68 68

    Dolan From Street

  • Natural Hazard Mitigation Association

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    69 69

    Dolan Floodplain and Bike Path

  • Natural Hazard Mitigation Association

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    70 70

    In Lingle, The Supreme Court States

    How To Determine If There Is A

    Taking

    The Court went on to say that the Tests

    articulated all aim to identify regulatory actions

    that are functionally equivalent to a direct

    appropriation of or ouster from private property

  • Natural Hazard Mitigation Association

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    71 71

    In Lingle, The Supreme Court States

    How To Determine If There Is A

    Taking In Addition, in His Concurring Opinion, Justice

    Kennedy Indicates that the decision left open the

    possibility of litigating a regulation which was "so

    arbitrary or irrational as to violate due process."

  • Natural Hazard Mitigation Association

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    72 72

    Hazard Based Regulation And The

    Constitution

    Hazard Based Regulation Generally Sustained

    Against Constitutional Challenges

    Goal of Protecting the Public Accorded

    ENORMOUS DEFERENCE by the Courts

  • Natural Hazard Mitigation Association

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    73 73

    Why Should Government Do

    Something About This?

    Fundamental Duty

    Protect The Present

    Preserve A Communitys Future

  • Natural Hazard Mitigation Association

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    74

    Is There A Government Right to

    Prevent Harm?

    Does Government Have a Duty to Prevent

    Injurious Consequences from Floods?

  • Natural Hazard Mitigation Association

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    75 75

    Floods and Litigation

    When Someone Is Allegedly Damaged by the

    Actions of Others Who Pays?

    This is a Fundamental Question of Law.

  • Natural Hazard Mitigation Association

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    76 76

    Grounds For Suit

    Standard of Care for Professionals Is Increasingly

    High As Professionals Develop Increasingly

    Sophisticated Design Methods

    Previously Accepted Defenses Such As the

    Common Enemy Doctrine for Flood Fighting is

    Increasingly Replaced By Rule of Reasonable

    Person

    The Reasonable Person is Expected To Be

    Something Like An Expert When We Are

    Discussing Something Like Land Use

  • Natural Hazard Mitigation Association

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    77 77

    Proof of Causation of Harm Is Easier

    Now Than In Past Times

    Forensic Hydrologists

    Forensic Hydraulic Engineers

  • Natural Hazard Mitigation Association

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    78

    Examples of Situations Where Governments and Property Owners Have Been Held Liable

    Construction of a Road Blocks Drainage

    Stormwater System Increases Flows

    Structure Blocks Watercourse

    Bridge Without Adequate Opening

    Grading Land Increases Runoff

    Flood Control Structure Causes Damage

    Filling Wetland Causes Damage

    Issuing Permits for Development

    Which Causes Harm to a Third Party

  • Natural Hazard Mitigation Association

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    79 79

    In These Examples Of Community Legal Liability For Permitting Or Undertaking Activity

    Is There A Theme?

    YOU BET!!!

    What is that Theme?

  • Natural Hazard Mitigation Association

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    80 80

    The Theme

    They did not do No Adverse Impact Planning!!!

    They Did Not Adopt the Higher Standards of the CRS

    Program!!

    They Did Not Identify the Impacts of the Development

    Activity

    They Did Not Notify the Soon- to- Be Afflicted Members

    of the Community

    They Did Not Re-Design or Re-Consider the Project

    They Did Not Require Appropriate and Necessary

    Mitigation Measures

  • Natural Hazard Mitigation Association

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    81 81

    Landowner Does Not Have All Rights Under The Law

    No Right to be a Nuisance

    No Right to Violate the Property Rights of Others

    No Right to Trespass

    No Right to be Negligent

    No Right to Violate Laws of Reasonable Surface

    Water Use; or Riparian Laws

    No Right to Violate the Public Trust

  • Natural Hazard Mitigation Association

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    82 82

    Public Entities Do Not Have The Right To Do Just Anything Either!

    No Right to Use Public Office To Wage

    Vendettas

    No Right To Abuse the Public

    No Right To Use Regulation To Steal From a

    Landowner

  • Natural Hazard Mitigation Association

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    83

    Liability Can Sometimes Be Established Under

    A Variety of Theories: Failure To Follow Your

    Own PlanKeystone Elec. Mfg. Co. v. City of Des Moines, 586

    N.W.2d 340, 343 (Iowa 1998)

    We conclude that the City's decisions concerning

    how to fight the flood do not fall under the

    discretionary function exception to liability under

    Iowa Code section 670.4(3) of Iowa's Tort Liability

    of Governmental Subdivisions Act....

  • Natural Hazard Mitigation Association

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    84 84

    A Solution

    Go Even Further Beyond NFIP Minimum

    Standards

    No Adverse Impact-CRS Type:

    Development decision-making

    Planning

    Emergency Preparedness

  • Natural Hazard Mitigation Association

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    85 85

    Why Go Further Beyond the Current Minimum Standards?

    Flood damages are continuing and/or increasing

    unnecessarily!

    Current approaches deal primarily with how to build in a floodplain vs. how to minimize future damages

  • Natural Hazard Mitigation Association

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    86 86

    No Adverse Impact Floodplain

    Management(Such as Higher Standards for Floodplain Management)

    What is No Adverse Impact Floodplain

    Management?

    ASFPM defines it as an Approach that ensures

    the action of any property owner, public or

    private, does not adversely impact the property

    and rights of others

  • Natural Hazard Mitigation Association

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    87 87

    No Adverse Impact Explained

    NAI is a concept/policy/strategy that broadens one's focus from the built environment to include how changes to the built environment potentially impact other properties.

    NAI broadens property rights by protecting the property rights of those that would be adversely impacted by the actions of others.

  • Natural Hazard Mitigation Association

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    88 88

    What Is The Result Of Implementing

    Higher Standards?

    PROTECTION OF THE PROPERTY RIGHTS OF ALL

    Legally Speaking, Prevention of Harm is Treated

    Quite Differently Than Making the Community a

    Better Place.

    Prevention of Harm to the Public Is Accorded

    Enormous Deference by the Courts

  • Natural Hazard Mitigation Association

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    89 89

    Higher Standards:

    Are consistent with the concept of sustainable

    development

    Provide a pragmatic method for regulation

    Make sense on a local and regional basis

    May be rewarded by FEMAs Community Rating

    System, especially under the new CRS Manual

    Can reduce the potential for litigation against a

    community

  • Natural Hazard Mitigation Association

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    90 90

    No Adverse Impact Floodplain

    Management New concept?

    No, it is a modern statement of an Ancient Legal Maxim

    Sic utere tuo ut alienum non laedas

    Use your property so you do not harm others

    Detailed Legal Papers by Jon Kusler and

    Ed Thomas available at: www.floods.org

    More information in ASFPMs A Toolkit on Common

    Sense Floodplain Management at: www.floods.org

  • Natural Hazard Mitigation Association

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    91 91

    According To the Writings of One of

    Our Greatest Moral Philosophers -

    Mohandas K. Gandhi:

    Sic Utere Tuo Ut Alienum Non Laedas

    That Is, In English: Use Your Property So You Do Not

    Harm Others is:

    A Grand Doctrine Of Life And The Basis Of (Loving

    Relationships) Between Neighbors

  • Natural Hazard Mitigation Association

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    92

    Who Else Likes Sic Utere?Colorado Supreme Court

    The police power is an attribute of sovereignty and

    exists without any reservation in the constitution,

    being founded upon the duty of the state to protect its

    citizens and provide for the safety and good order of

    society. * * * It is founded largely on the maxim sic

    utere tuo, ut alienum non laedas."

    People v. Hupp, 53 Colo. 80, 83 (Colo. 1912)

  • Natural Hazard Mitigation Association

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    93 93

    Group Exercise!

    Do Reasonable, Fairly Applied Hazard Based

    Regulations Decrease The VALUE of A Property?

    Not The Price, The VALUE.

    Hint: The Problem Of The Purloined Purse.

  • Natural Hazard Mitigation Association

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    94 94

    The Purloined Purse Defense

    Fifth Amendment to the Constitution of the

    Unites States: nor shall private property be

    taken for public use without just compensation.

  • Natural Hazard Mitigation Association

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    95 95

    Result The taking clause was never intended to

    compensate property owners for property rights

    they never had. Massachusetts Supreme

    Judicial CourtGove v. Zoning Board of Appeals

    444 Mass.754 (2005) Massachusetts Supreme Judicial Court,

    decided July 26, 2005

  • Natural Hazard Mitigation Association

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    How About Another Defense? I Have a Permit to Snatch Wallets and Purses?

    Right Here-Look

    Legislature Passed a Law to Help Raise Funds for

    Local Government

    96

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    Purloined Purse In A Flood Context

    Defendants built flood control works knowing that they

    could cause upland flooding, and such works were a

    substantial concurring cause of the injury.

    Akins v. California, 48 Cal. App. 4th 832 (Cal. App. 3d Dist.

    1996)

    97

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    A Conservative, Property Rights View

    The Cato Institute Indicates that Compensation is

    Not Due When:

    regulation prohibits wrongful uses, no

    compensation is required.

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    99 99

    Other Contributing Factors:

    Think about the following scenarios-

    Debris blockage (models assumes no blockage)

    Wildfires (exacerbated flows from burned vegetation)

    Technical assumptions and other uncertainties

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    100

    Might Fort Collins Wish To Consider The

    Proposed Higher Floodplain Standards?Consider:

    A) Uncertainties in flood elevations-50% Confidence

    B) Consequences if a factory, water treatment plant or other

    critical facility is flooded

    C) 50% Chance That 1% Flood will be exceeded

    within 70 years according to Bulletin 17 B of the WRC

    D) Changes in flood heights and velocities due to factors

    such as upstream wildfires and mud slides/mudflow

    E) Climate Variability and Climate Change

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    101 101

    Hazard Based Regulation And The Constitution

    Hazard based regulation is generally sustained

    against Constitutional challenges

    Goal of protecting the public accorded

    ENORMOUS DEFERENCE by the Courts

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    102

    Higher Regulatory Standards Are:

    A) Legal

    B) Equitable

    C) Practical

    D) Defensible in Court

    E) Supported by good economic analysis

    F) The very basis of sustainability

    G) Rewarded under the Community Rating

    System

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    103 103

    Take Away Messages For Today

    Prevention

    We Throw Money At Problems After They

    Occur

    We Can Pay A Little Now; Or Society Pays

    Lots Later

    The Legal System Is Ready To Help Society

    Pay Later

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    Some Messages to Government

    Managers From My Negotiations

    Training

    Government must stop being or perceived as

    being The Abominable No People!!

    104

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    105

    Find A Yes

    We Are For Development

    We Are For Safe Place For Our Citizens To Live

    We Must Consider Others When We Develop

    Channel Any Emotion Into Action

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    106

    Steps to Uncover the Yes

    Never Start With NO!

    We Are Against NO

    Start With What We Are For

    We Want Your Development!

    We Need The Tax Revenue

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    107

    If Needed:

    Develop A Well Thought Out-Clear NO!

    Know Your Stuff

    How Can This Project Be Made Acceptable?

    Build a Coalition-Partnerships

    Who Shares Your Interests?

    How Can Private Industry Solve the Problem?

    Consider The Worst Case

    Consider The Worst Case If You Have To Live With A

    Yes, When You Should Have Said No

    The Mirror Test

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    108

    Turn the Usual Development Process

    Around! Let the Private Sector DoWhat It Does Best!

    Solve Problems!

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    If It Is A Good Project...

    Yes.

    Yes.

    Yes!109

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    110 110

    Take Away Message

    Responsible For Community Development?

    Many Areas Can Flood

    Uninsured Victims Will Likely Sue-If They Can Find

    Someone to Blame

    Fair Harm Prevention Regulation Helps Everyone

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    111 111

    Take Away Message

    Community Leaders Have Responsibility for

    Public Safety and Need To Be Aware:

    Many Areas Can Flood

    Uninsured Victims Will Likely Sue- and will try to

    find someone to blame

    Fair Harm Prevention Regulations Help Everyone

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    112 112

    Message For All Involved In

    Community Development

    The Fundamental Rules of Development

    Articulated, By Law, Envision Housing and

    Development Which Is:

    Decent

    Safe

    Sanitary

    Affordable

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    113 113

    Flooded Development Fails That Vision!

    Housing And Development Which Flood Are:

    Indecent

    Unsafe

    Unsanitary

    Unaffordable- by the Flood Victims, By Their

    Community, By The State, and By Our Nation.

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    Summary

    Fundamentally Our Society Must Choose Either:

    Better Standards to Protect Resources and

    People or Standards Which Inevitably Will Result

    in Destruction and Litigation

    The higher regulations which Fort Collins is

    considering are a step in the Right Direction

    114

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    Please Consider

    When is the Right Time to Do the Right Thing?

    115

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    116

    Questions and Answers