Natural Hazard Mitigation Association · Natural Hazard Mitigation Association ... Through IRS Casualty Losses, SBA Loans, Disaster CDBG Funds, and the Whole Panoply of Federal and

Natural Hazard Mitigation Association

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1

Fort Collins

Poudre River Floodplain Regulations

Open House

November 18, 2010

Edward A. Thomas, Esq.

[email protected]


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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


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Why do we have government?

� Any ideas?

3


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Fundamental Consideration

� Allocation of responsibility for safe and

sustainable development:

� Government

� Business and Industry

� Individuals

4


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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


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What is a Disaster?

� Loss of a Job?

� Loss of One’s Home?

� Loss of a business or industry?

� Loss of a Community Facility?

� Widespread Loss of Power?

� Wildfire?

� Blizzard?


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What is a Disaster?

� It’s All a Matter of Perspective

� Victim

� Local Community

� State

� Federal Government


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Must an Event be a “Disaster”?

� Preparation

� Individual� Insurance

� Disaster Kit/Plan

� One’s 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…


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Mother Nature


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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”


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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


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13 13

Trends in Flood Damages

� Flood losses and reported flood heights

are increasing

� Demographic trends indicate great future

challenges


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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?


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� $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 2000’s 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

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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, but…We’ll discuss why that is…


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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


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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


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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.”


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22 22

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


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Special Flood Hazard Area

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


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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?


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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

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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


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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


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� 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


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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


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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


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35 35

Why Should Government Do

Something About This?

� Fundamental Duty

� Protect The Present

� Preserve A Community’s Future


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36 36

Why Should Everyone

Care About This?

� In a Word:

Liability


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37 37

Litigation for Claimed Harm Is Easier

Now Than In Times Past

�Forensic Hydrologists

�Forensic Hydraulic Engineers


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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


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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


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40 40


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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)

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Reason #2 Why Safer Standards Are Not

Implemented:

Concerns About A “Taking”


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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


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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


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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)


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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


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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.


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48 48

Susette Kelo


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49 49

Susette Kelo’s House


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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


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51 51

Here Is The Gas Station In Lingle


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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);


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Loretto Apartment

Building:

Physical Intrusion


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54 54



Taking II

� Total, or Near Total Regulatory Taking. See, Lucas

v. South Carolina Coastal Council 505 US 1003

(1992);


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55 55

Lucas Sites Pre-Development

William A. FischelDartmouth College


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Lucas From Street




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57 57

Lucas Area



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Lucas Extinguishing Legitimate Investment Backed Expectations


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Lucas Post Development of One Lot; Now Both Lots



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Taking III

� A “Penn Central Taking.” See, Penn Central v.

City of New York 438 US 104 (1978);


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Grand Central Station, New York

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


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62 62

Grand Central Station, New York


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63 63

Grand Central, With New Design


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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


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65 65


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)


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66 66

Nollan House From Road


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67 67

Nollan House From Beach


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68 68

Dolan From Street


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69 69

Dolan Floodplain and Bike Path


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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


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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."


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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



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73 73

Why Should Government Do

Something About This?

� Fundamental Duty

� Protect The Present

� Preserve A Community’s Future


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74

Is There A Government Right to

Prevent Harm?

� Does Government Have a “Duty to Prevent

Injurious Consequences from Floods?


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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.


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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


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77 77

Proof of Causation of Harm Is Easier

Now Than In Past Times

�Forensic Hydrologists

�Forensic Hydraulic Engineers


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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


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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?


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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


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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


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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


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83

Liability Can Sometimes Be Established Under

A Variety of Theories: Failure To Follow Your

Own Plan�Keystone 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....”


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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


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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


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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”


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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.


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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


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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 FEMA’s Community Rating

System, especially under the new CRS Manual

� Can reduce the potential for litigation against a

community


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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 ASFPM’s A Toolkit on Common

Sense Floodplain Management at: www.floods.org


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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”


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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)


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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.


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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.”


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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


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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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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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Hazard Based Regulation And The Constitution

� Hazard based regulation is generally sustained

against Constitutional challenges

� Goal of protecting the public accorded



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� 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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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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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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Questions and Answers

Natural Hazard Mitigation Association · Natural Hazard Mitigation Association ... Through IRS Casualty Losses, SBA Loans, Disaster CDBG Funds, and the Whole Panoply of Federal and

Documents