When retreat is the better part of valor: Analysis of Strategies to Incentivize Retreat from the Shore

Transcription

1 When retreat is the better part of valor: Analysis of Strategies to Incentivize Retreat from the Shore Hyo (Charlene) Kim and Caroline Karp Center for Environmental Studies Brown University 1

2 When is retreat is the better part of valor? Waterfront condos in the Fort Trumbull section of Milford

3 Browning cottages Matunuck, RI Indian Neck section of Branford Waterfront condos in the Fort Trumbull section of Milford Pequot Road in Southport East Haven Ex Lucas property SC Indian Neck section of Branford USCG Station New London 3

4 Report of the Two Storm Panel January 9, 2012 Extreme weather events, e.g., Irene and ice storm, are costly and likely to become more fre quent, more intense and more expensive 1.3 Actual and Projected Trend in Sea Level Rise in New London and Bridgeport, CT Relative to 2000 Datum Sea level is expected to increase by 1 to 1.5 ft by 2050 and by 3 to 5 ft by Year Bridgeport Data New London Data Bridgeport High/Low Projections New London High/Low Projections Brideport Trend (2.61 mm/yr) New London Trend (2.49 mm/yr)

5 When retreat is the better part of valor I. What can CT do to address existing coastal development that is at increased risk from effects of global warming? II. Can State, local govts regulate or prohibit devpt of property in high risk areas (FIRM A, V, high erosion zones) even if it results in loss of all economically beneficial use? Aerial photo of Misquamicut Beach

6 Basis of State authority to regulate and/or prohibit development of high hazard coastal areas 10 th Amendment: States may exercise police power to restrain the personal freedom and property rights of persons for the protection of the public safety, health, and morals... subject to limitations of the federal and State constitutions. Marshall v. Kansas City, Mo., 355 S.W.2d 877, 883 Public trust doctrine: by the law of nature, these things are common to all mankind: the sea, the shores of the sea, running water and the air 5 th Amendment: nor shall private property be taken for public use without just compensation 6

7 TYPOLOGY OF NON /GOVERNMENTAL ACTIONS DIRECT NON- MARKET Regulation (command + control) INDIRECT Information MARKET - Buy - Make - Tax - Subsidize Adapted from: O'Hare, A typology of government action. J.Policy Anal.Mgmt 8:670 (1989) Fiorino, Ch. 4 Strategies in Making Environmental Policy (1995)

8 Equity Exigency Efficiency More Less COMMAND + CONTROL LIMIT ABILITY TO REBUILD AFTER >50% LOSS and LIMIT EXPANSION OF EXISTING AND NEW DEVPT (DOWNZONE) REQUIRE AND ENFORCE SETBACKS AND BUFFERS VIA EROSION CONTROL AND ROLLING EASEMENTS TO PROTECT PUBLIC TRUST (See TX OPEN BEACHES ACT; SETBACKS +/ ANNUAL RATE OF EROSION*) MARKET: BUY +MAKE ACQUIRE AT RISK PROPERTY VIA EMINENT DOMAIN; ACQUIRE and PROTECT BUFFERS VIA PDRs AND EASEMENTS INCENTIVIZE RELOCATION VIA TDRS (ESTABLISH RECEIVING AREAS) LIMIT STATE, LOCAL RESPONSIBILITY FOR REBUILDING PUBLIC INFRASTRUCTURE AFTER REPETITIVE LOSS (See CoBRA) MARKET: TAXES + SUBSIDIES MANDATE MULTI YEAR RISK BASED PRIVATE INSURANCE PREMIUMS OR PROHIBIT ACCESS TO STATE SUPPORTED INSURANCE POOL ADOPT RISK BASED SPECIAL ASSESSMENTS THAT RUN WITH THE LAND MANDATE PERFORMANCE BOND INFORMATION REQUIRE DISCLOSURE OF FLOOD, INUNDATION AND STORM DAMAGE HISTORY BY SELLERS, REALTORS, BANKS BEFORE CLOSING MANDATE RECORDING OF CURRENT FIRM DESIGNATION IN LAND EVIDENCE RECORDS DESIGNATE AND ENFORCE UNBUILDABLE AREAS BASED ON WETLANDS, DUNES, T/E SPECIES HABITAT; FIRM A, V and HIGH EROSION ZONES HARD AND SOFT ARMORING ENGINEER THE SHORELINE TAX BREAKS TO REWARD EROSION CONTROL EASEMENTS, 8

9 When retreat is the better part of valor: Key Strategies and Legal Issues I. What can CT do to address existing coastal development that is at increased risk from effects of global warming? 1. Can State, local govts take or acquire at risk private property? YES, see Kelo v. City of New London. one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid. Hawaii Housing Authority v. Midkiff (1984) however. 9

10 When retreat is the better part of valor: Key Strategies and Legal Issues I. What can CT do to address existing coastal development that is at increased risk from effects of global warming? 1. Can State, local govts take at risk private property? YES 2. Can State, local govts incentivize responsible devpt of property in high risk areas (FIRM A, V and high erosion areas), e.g.: a. Require disclosure and Impose risk based special assessments, exactions? YES. b. Require or limit access to State supported flood insurance pool? YES. c. Condition devpt on a performance bond? YES. d. Condition re building in high risk area after major damage (>50%) on compliance with building codes, setbacks etc.? YES. 10

11 Equity Exigency Efficiency More Less COMMAND + CONTROL LIMIT ABILITY TO REBUILD AFTER >50% LOSS and LIMIT EXPANSION OF EXISTING AND NEW DEVPT (DOWNZONE) REQUIRE AND ENFORCE SETBACKS AND BUFFERS VIA EROSION CONTROL AND ROLLING EASEMENTS TO PROTECT PUBLIC TRUST (See TX OPEN BEACHES ACT; SETBACKS +/ ANNUAL RATE OF EROSION*) MARKET: BUY +MAKE ACQUIRE AT RISK PROPERTY VIA EMINENT DOMAIN; ACQUIRE and PROTECT BUFFERS VIA PDRs AND EASEMENTS INCENTIVIZE RELOCATION VIA TDRS (ESTABLISH RECEIVING AREAS) LIMIT STATE, LOCAL RESPONSIBILITY FOR REBUILDING PUBLIC INFRASTRUCTURE AFTER REPETITIVE LOSS (See CoBRA) MARKET: TAXES + SUBSIDIES MANDATE MULTI YEAR RISK BASED PRIVATE INSURANCE PREMIUMS OR PROHIBIT ACCESS TO STATE SUPPORTED INSURANCE POOL ADOPT RISK BASED SPECIAL ASSESSMENTS THAT RUN WITH THE LAND MANDATE PERFORMANCE BOND INFORMATION REQUIRE DISCLOSURE OF FLOOD, INUNDATION AND STORM DAMAGE HISTORY BY SELLERS, REALTORS, BANKS BEFORE CLOSING MANDATE RECORDING OF CURRENT FIRM DESIGNATION IN LAND EVIDENCE RECORDS DESIGNATE AND ENFORCE UNBUILDABLE AREAS BASED ON WETLANDS, DUNES, T/E SPECIES HABITAT; FIRM A, V and HIGH EROSION ZONES HARD AND SOFT ARMORING ENGINEER THE SHORELINE TAX BREAKS TO REWARD EROSION CONTROL EASEMENTS, 11

12 When retreat is the better part of valor: Key Strategies and Legal Issues I. What can CT do to address existing coastal development that is at increased risk from effects of global warming? 1. Can State, local govts take at risk private property? YES. 3. Can State, local govts incentivize responsible devpt of property in high risk areas? YES. II. Can State, local govts regulate or prohibit devpt of property in high risk areas (FIRM A, V, high erosion zones) even if it results in diminuition of value? 1. Can the State prohibit rebuilding after catastrophic (>50%) loss? YES. 2. Can the State require and/or acquire setbacks, buffers from coastal features? (Rolling & Erosion Control Easements) YES. 3. Can Fed, State, local govts limit financial responsibility to rebuild public infrastructure? YES. 1 2

13 When retreat is the better part of valor: PDRs, Easements and Tax Incentives Rolling Easements (Titus 1998, 2010) See TX Open Beaches Act; MD Critical Areas Program; Worcester County Coastal Bays Rural Legacy Area; SC Beach Front Management Act (1998) Erosion Control Easements (Zoning overlay districts +/ tax incentives) 13

14 II. Can State, local govts regulate or prohibit devpt of property in high risk areas (FIRM A, V, high erosion zones) even if it results in loss of all economically beneficial use? YES. Public Trust Doctrine State duty to protect Public Trust interests seaward of mean high tide (MHT) Rolling easements Require performance bond and/or Require rent for occupation of PT lands Prevent Public Nuisance Mandatory setbacks, buffers Erosion Control Easements ID unbuildable areas 14

15 5 th Amendment Takings Analysis Can State, local govts regulate or prohibit devpt of property even if it results in loss of all economically beneficial use? 5 th Amendment nor shall private property be taken for public use without just compensation Eminent Domain or Formal Condemnation (Kelo, Dolan v. City of Tigard) Inverse Condemnation (PA Coal v. Mahon) Physical Occupation (Loretto Teleprompter; Dolan v. City of Tigard) Regulatory Taking Lucas, Palazzolo, Stop the Beach Penn Central 15

16 Equity Exigency Efficiency More Less COMMAND + CONTROL LIMIT ABILITY TO REBUILD AFTER >50% LOSS and LIMIT EXPANSION OF EXISTING AND NEW DEVPT (DOWNZONE) REQUIRE AND ENFORCE SETBACKS AND BUFFERS VIA EROSION CONTROL AND ROLLING EASEMENTS TO PROTECT PUBLIC TRUST (See TX OPEN BEACHES ACT; SETBACKS +/ ANNUAL RATE OF EROSION*) MARKET: BUY +MAKE ACQUIRE AT RISK PROPERTY VIA EMINENT DOMAIN; ACQUIRE and PROTECT BUFFERS VIA PDRs AND EASEMENTS INCENTIVIZE RELOCATION VIA TDRS (ESTABLISH RECEIVING AREAS) LIMIT STATE, LOCAL RESPONSIBILITY FOR REBUILDING PUBLIC INFRASTRUCTURE AFTER REPETITIVE LOSS (See CoBRA) MARKET: TAXES + SUBSIDIES MANDATE MULTI YEAR RISK BASED PRIVATE INSURANCE PREMIUMS OR PROHIBIT ACCESS TO STATE SUPPORTED INSURANCE POOL ADOPT RISK BASED SPECIAL ASSESSMENTS THAT RUN WITH THE LAND MANDATE PERFORMANCE BOND INFORMATION REQUIRE DISCLOSURE OF FLOOD, INUNDATION AND STORM DAMAGE HISTORY BY SELLERS, REALTORS, BANKS BEFORE CLOSING MANDATE RECORDING OF CURRENT FIRM DESIGNATION IN LAND EVIDENCE RECORDS DESIGNATE AND ENFORCE UNBUILDABLE AREAS BASED ON WETLANDS, DUNES, T/E SPECIES HABITAT; FIRM A, V and HIGH EROSION ZONES HARD AND SOFT ARMORING ENGINEER THE SHORELINE TAX BREAKS TO REWARD EROSION CONTROL EASEMENTS 16

17 SUMMARY: When retreat is the better part of valor I. What can CT do to act in a precautionary manner to address development in the coastal zone that is at increased risk from effects of global warming? 1. Can State, local govts take at risk private property? YES. 3. Can govts incentivize responsible devpt of property in high risk areas via disclosure and market based strategies? YES. II. Can State, local govts regulate or prohibit devpt of property in current or future high risk coastal areas (FIRM A, V, erosion zones) even if it results in loss of all economically beneficial use? 1. Can the State limit the ability to rebuild after catastrophic (>50%) loss? YES 2. Can the State require and/or acquire setbacks, buffers from coastal features? (Rolling & Erosion Control Easements) YES. 3. Can Fed, State, local govts limit financial responsibility to rebuild public infrastructure? YES. 4. Can the govt prohibit (re building to protect Public Trust interests, prevent public nuisance? YES. 17

18 When retreat is the better part of valor: Some Recommendations Continue to mitigate GHG emissions Require disclosure of flood, storm damage and FIRM designation Require property owners who live in FIRM A, V and high erosion zones to pay multiyear, risk based insurance premiums OR prohibit access to State insurance pool Encourage municipal govts to impose risk based special assessments and/or performance bonds (CGS 22a 107) Protect the PT using rolling easements and Limit financial responsibility for repair/ replacement of infrastructure subject to repetitive loss (CoBRA) Continue to discourage hard armoring and Encourage municipal govts to develop tax incentives for Erosion Control Easements to protect integrity of tidal wetlands and vegetative buffers (see CGS 22a 106 to CGS 22a 108). Develop Coastal Growth Boundary + TDR Receiving Area and Identify and enforce devpt restrictions on unbuildable land 18

19 The adaptable little pink house Built Moved to Fort Trumbull Area near mouth of Thames River 1980s restored by A.Gregory 1997 Sold to S.Kelo 2005 Kelo v. City of New London 2008 Bought by A.Gregory and moved to Franklin St, New London 19

20 When retreat is the better part of valor: Who controls coastal decision making? Indirect Regulatory Control Direct Proprietary Control Federal Commerce Power Navigational Servitude State Police Power Public Trust Doctrine Supremacy Supremacy Municipal govt and Utilities Delegated police power 20