ULI Hampton Roads- Resilient Region Reality Check: Rising Above the Waters Legal Authority and Sea...

ULI Hampton Roads- Resilient Region Reality Check:

Rising Above the Waters

Legal Authority and Sea Level Rise

September 16, 2015

Henry R. “Speaker” Pollard, V

2

>Foundational Issues>Impacts and Risk Drivers>Initial Policy Factors>Current Legal Framework>Potential Strategies>Questions

Overview

3

>Importance of shoreline property and coastal communities

>Drivers of relative sea level rise and recurrent flooding

>Quality of underlying risk and vulnerability assessment

>Community risk aversion attitude>What does the community value?>How do the priorities rank?>A legal/regulatory landscape in flux

Foundational Issues

4

Larry P. Atkinson, Tal Ezer, and Elizabeth Smith, Sea Level Rise and Flooding Risk in Virginia, 5.2 SEA GRANT L. & POLICY J., 3, 12 (Winter 2013).

Foundational Issues

5

Foundational Issues

>Relative Sea Level Rise & Recurrent Flooding Trends

– If trend lines continue . . . then growing risk of recurrent flooding and inundation due to higher tides and storm surges

• Best information indicates this trend will continue at its current pace or perhaps at even a greater one

• Variable uncertainty in short run and long run

6

>Infrastructure: Flooding/Damage– Transportation– Power– Communication– Water, sanitary sewer, and stormwater management

>Shoreline uses compromised/lost– High value residential– Compromised waterfront commercial/industrial uses

>Environmental concerns (petroleum/chemical storage, contaminated properties)

Impacts and Risk Drivers

7

>Economic– Insurance cost/availability for shoreline property– Financing and lending risk – Effects on impacted property marketability/values– Property tax implications and fiscal load to localities– Economic development impacts – Disruption to moving personnel, goods and services– Specific industries: shoreline dependent (terminals

and ports, fisheries, boating), tourism, recreation– Military facilities– Beyond Hampton Roads and Tidewater, VA


8


>Land Use and Planning– Changing housing patterns– Changing transportation patterns– Need to relocate/change infrastructure– Governmental funds and private investment

diverted from proposed areas of development– Defend v. adapt v. managed retreat choices– Potential for disruption/displacement within

community when addressing hard choices and costs

– Political sensitivities

9

>Risk Management:– Protect/Defend– Adapt– Managed Retreat– Ignore/Do Nothing


10

>Two horns of the dilemma:– Can localities (and others) afford to be wrong?

• Costs and risks of not addressing the problem could be substantial, of not overwhelming, depending on exposure

– But can localities (and others) afford to be right?

• The cost to address relative sea level rise itself could be beyond reach: protection v. adaptation v. retreat


11

>In the end: a question of risk tolerance

>But if neighbors have different risk tolerances, what does that mean for the local plan?

>Begs question of local v. regional v. state v. federal implementation


12

>Priorities for uses, resources and facilities– Transportation, economic development, utilities,

emergency services, public open space, >Tax base impacts>Legal and regulatory obligations>Protection of prior infrastructure investment>Equity of implementation options>Financial capacity and debt service/revenue

generation>Stakeholder involvement>Comprehensive plan consistency/revision>Legal liability risk

Initial Policy Factors

13

>Can you do what you want to do? – Practical limitations/concerns– Legal authority– Proper political body (city/county, special

district/authority, regional entity)– Funding/financing resources and limitations

• Potential mix

Initial Policy Factors

14

Current Legal Framework

>Legal Authority Issues and Liability Risks– Duty to maintain roads in flooded areas?– Duty to offer water, sewer or gas in flooded areas?– Duty to provide emergency services in flooded areas?– Compliance with utility bond covenants: loss of

revenue stream from impacted shoreline properties – Condemnation actions and takings claims:

• Need to acquire protection areas, property for replacement facilities, or adapt to recurrent flooding

• Land use decisions or zoning actions that violate vested property rights and approved site plans

15


>Legal Authority Issues and Liability Risks (cont.)– Publicly owned treatment works (POTWs) – Municipal separate stormwater sewer systems (MS4s)– Sanitary sewer overflows (SSOs) – Regulated waters/wetlands (federal v. state)

• Changes in tidally influenced areas• Recurrent flooding up into stormwater point sources

– Contaminated property/Superfund site cleanup– Solid waste landfill integrity, monitoring, & closure– Protected species habitat impacts– Spill prevention, control & countermeasures (SPCC)

plans

16

>Legal Authority Issues and Liability Risks (cont.)– Police power – are flooding and sea level rise a

threat to public health and welfare?– Land use/zoning and site plan controls – does

planning regime allow strategic management of risks?

• Local v. state v. federal control of land use– Chemical and petroleum storage and transportation– Public v. public/private partnership entities– Public finance mechanisms – are there sufficient

means of revenue generation to pay for needs?– Dillon Rule always lurking for Virginia localities


17

>Federal Law– U.S. Constitution– Coastal Zone Management Act– Executive Order 13690– Federal case law on takings– Federal facilities site design– National parks– Environmental Laws & Regulations– Case Law


18

>Virginia and Local Law– Virginia Constitution– Statutory Zoning Authority– Comprehensive Planning Process– Statewide Building Code– Streets– Authority to Purchase Property– Eminent Domain/Condemnation Powers– Transfer Development Rights– Special Service Districts


19

>Virginia and Local Law (cont.)– Chesapeake Bay Preservation Act– Environmental Laws & Regulations– Water Supply Protection and Planning– Dune Preservation– Virginia case law– Economic Development and EDA’s– Brownfield Laws– Blight Abatement


20


>Virginia Comprehensive Flood Control Program

– Va. Code § 10.1-658. State interest in flood control.

– Va. Code § 10.1-659. Flood protection programs; coordination

21

>Specific Statutory Mechanisms– General authority granted in Code of Virginia,

by Act of Assembly, in city charter or county or city code

– Purchase of real estate (Va. Code § 15.2-1800)– Eminent domain (Va. Code §§ 15.2-1900 - 15.2-

1907.1)• Allowed public uses and allowed public

facilities– Public nuisance abatement (Va. Code §§ 15.2-

900 & 48-5)


22

>Specific Statutory Mechanisms– Participation in certain federal development

programs granting funds for housing, community development or economic development purposes (Va. Code § 15.2-956)

– Floodwaters may be captured and stored by riparian owners (Va. Code § 62.1-104 et seq.)

– Comprehensive plans to account for sea level rise and recurrent flooding and may in come cases incorporate local hazard mitigation plans (Va. Code § 15.2-2223.3)


23

>Dams and levees: Authority to “construct a dam, levee, seawall or other structure or device, or perform dredging operations hereinafter referred to as ‘works,’ the purpose of which is to prevent the tidal erosion, flooding or inundation of such locality, or part thereof.” Va. Code § 15.2-970


24

>Studies and Projects Affecting Legal Policy– Recurrent Flooding Study for Tidewater Virginia

(VIMS)– Secure Virginia Panel – Coastal flooding

subpanel – SB 3/HJR 16 Recurrent Flooding Study by

General Assembly Joint Subcommittee – Governor’s Climate Change and Resiliency

Update Commission (reconstituted)


25

>Comprehensive Plan Process– Holistic perspective– Long-term perspective– Sea level rise, recurrent flooding and local

hazard planning>Zoning:

– Setbacks– Elevation requirements– No re-build zones– Overlay districts

Potential strategies

26

>Easements (rolling or fixed?)>Purchase property>Condemnation>Service districts>Mandatory financial assurance tied to site plan

approval>Impact offset proffers

– Site design to provide defensive measures or adaptation – Offsite measures as part of overall resiliency plan

>Regional coordination/authority>Merger of stormwater and coastal flooding

defense/adaptation: multi-purpose projects


27

>Financing– Local taxing authority– Special assessments– Fees– General obligation bonds– Special revenue bonds– Grants

• State• Federal


28

>Financing– Stormwater infrastructure financing mechanisms– Economic development– Urban Public-Private Partnership Redevelopment

Fund– Transportation funding– Reliability of state and federal funding/financing?– Issue of debt capacity

• Competition for debt financing• Revenue source


29

>Opportunities Presented– If planning and resiliency done well:

• Land use planning accounts for effects, so facility siting and property uses safer and more assured in long run

• Transportation and utilities more reliable• Ports fitted to withstand effects

– Achieve comparative economic development advantage to other coastal communities


30

Thank you

This presentation is provided as an informational service and

does not constitute legal counsel or advice, which can

only be rendered in the context of specific factual situations. If

a legal issue should arise, please retain the assistance of

competent legal counsel.

31

Contact Information

Henry R. (“Speaker”) Pollard, VWilliams MullenPhone: (804) 420-6537E-mail: [email protected] South 10th Street, Suite 1600Richmond, VA 23219

32

Questions

ULI Hampton Roads- Resilient Region Reality Check: Rising Above the Waters Legal Authority and Sea...

Documents

Transcript of ULI Hampton Roads- Resilient Region Reality Check: Rising Above the Waters Legal Authority and Sea...