federal and florida legal issues for local governments
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Federal and Florida Legal Issues for Local Governments
Thomas Ruppert Florida Sea Grant,
Coastal Planning Specialist
OVERVIEW
• Context--takings as an impediment
• Takings overview, federal & state
• Some specific adaptations and issues
– Rolling easements
– Armoring and elevating
– Notice or disclosure
– Lateral access
– Drainage
April
2010:
“Takings” in the U.S. Constitution
“. . . nor shall private property be taken for public use, without just compensation.”
Bert Harris Act: The Basics
• A specific action . . .
• of a governmental entity that. . .
• inordinately burdens . . .
• an existing use of real property . . .
• or a vested right to a specific use of real property
Bert Harris Act
• No hard and fast rules on impact
• Act requires careful drafting and consideration
• Not necessarily a bar
• Several potential arguments in defense have not been ruled on by courts
What “Solutions”?! • Armoring: almost $382 million for bulkhead +
$935 million for fill + $252 million for salary = $1.57 billion
• Nourishment: for 39” of SLR = $6-$39 billion
• Elevation?
– Expensive, legal concerns and liability
• Floating development?
– Challenging with storm surge, wave action, and wind; also need to flood proof infrastructure
• Surge barriers?
• Relocation?
Elevate Structures
Photo: Thomas Ruppert
Elevating Buildings
• Already common practice—NFIP
– Few legal problems
– No Adverse Impact
• Add additional “freeboard” height
– Savings on premiums
– Possible CRS credit
Elevate the land
Photo Credit: Learning Architecture, http://architectureintlprogram.wordpress.com/2011/06/13/the-dubai-
palm-islands/
Elevating Land
• Ecological problems
• Legal problems
– Private owners suffer tort liability
– How to force existing private property to elevate?
– Elevating public roads/buildings = liability
• Economic issues
– Huge costs, but maybe an improvement district?
Notice of Coastal Hazards
• Why important legally?
– The Penn Central test
• Drafting a Notice Ordinance
– What property is affected?
– Timing and processes for notice
– Content of the notice
– Results of compliance or non-compliance
Lateral Access: The Trepanier Case • Parking/driving on property after storm
• Beach markers and driving moved landward
• Trial court for County
• Appellate Court: – Need proof of customary right
– Not self-evident that a customary right moves with the dry-sand beach
• LOSS OF LATERAL ACESS
Flooding & Hazard Liability?
• Liability if local gov’t causes flooding
– Tort (civil damages) or “taking” of property (Drake v.
Walton County, 6 So. 3d 717, 720-21 (1st DCA 2009) )
– Can be due to development approval
• Possible liability for known hazards?
Stormwater
Saltwater
Sea Wall
Drainage Challenge with Sea Level Rise
Drainage Capacity
CURRENT AVERAGE TIDAL CONDITIONS
Road Yard
Storm drain ↑
EXTREME HIGH TIDE OR SEA LEVEL RISE
Stormwater
Saltwater
Sea Wall
Drainage Capacity?
Road Yard
Storm drain ↑ Slide courtesy of Dr. Nancy Gassman, Broward County, FL
Parting Thoughts
• Many options (armor, elevate, relocate, etc.), but all have heavy costs
• Who pays – Property owners?
– Public?
• Why? – Who has info? Who can better change their own
behavior?
• Treat different property owners differently?
“[A] foolish man . . . built his house on
sand. The rain came down, the
streams rose, and the winds blew and
beat against that house, and it fell
with a great crash.” Matthew 7: 26-27
Thomas Ruppert, Esq.
Coastal Planning Specialist
Florida Sea Grant College Program
www.flseagrant.org/coastalplanning