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Natural Hazard Mitigation Association
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1
Fort Collins
Poudre River Floodplain Regulations
Open House
November 18, 2010
Edward A. Thomas, Esq.
Natural Hazard Mitigation Association
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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
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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
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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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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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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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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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Natural Hazard Mitigation Association
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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
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
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.”
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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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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
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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
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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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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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Why Should Government Do
Something About This?
� Fundamental Duty
� Protect The Present
� Preserve A Community’s Future
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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Lincoln, Nebraska
Flooded Homes May Cost City MillionsCity Held Liable – Damages Still To Be Determined
Photo: Lincoln Star Journal
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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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42 42
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
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Natural Hazard Mitigation Association
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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.
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48 48
Susette Kelo
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Susette Kelo’s House
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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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Here Is The Gas Station In Lingle
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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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53 53
Loretto Apartment
Building:
Physical Intrusion
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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);
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Lucas Sites Pre-Development
William A. FischelDartmouth College
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Lucas From Street
William A. FischelDartmouth College
William A. FischelDartmouth College
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Lucas Area
William A. FischelDartmouth College
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Lucas Extinguishing Legitimate Investment Backed Expectations
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Lucas Post Development of One Lot; Now Both Lots
William A. FischelDartmouth College
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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);
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61 61
Grand Central Station, New York
Photo Used With Permission of R. Murphy; "GNU Free Documentation License".
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Grand Central Station, New York
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Grand Central, With New Design
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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
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)
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Nollan House From Road
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Nollan House From Beach
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68 68
Dolan From Street
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Dolan Floodplain and Bike Path
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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
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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."
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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 Community’s 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.
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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
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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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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
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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
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 FEMA’s 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 ASFPM’s 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”
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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)
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.”
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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.”
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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
Natural Hazard Mitigation Association
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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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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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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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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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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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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
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Please Consider
� When is the Right Time to Do the Right Thing?
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Questions and Answers