Preventing Harm

By Chad Berginnis and Terri Turner

Government has an affirmative duty to prevent harm. The jobs of planners, floodplain managers, stormwater professionals, and professionals in disciplines related to water resources — especially those working in, for, and around government — are all centered around harm prevention. As simple as that sounds, it is much more difficult to put into practice.

A few years ago, the National Oceanic and Atmospheric Administration commissioned a report based on interviews with community development officials around the nation. The conclusions reveal two basic reasons why we are not doing more to lessen the severity of disasters. The primary reason is economics. Development near the water is more valuable, and local governments covet these high-value properties. The second reason is fear of regulatory takings challenges.

The courts give careful consideration to the prevention of harm. Even our system of law and government, going back thousands of years, revolves around the fact that people do not have the right to use their property in a way that harms other people. A maxim of Roman law was sic utere tuo ut alienum non laedas — use your property so that you do not harm others.

Individuals damaged by flooding or erosion are increasingly filing lawsuits against governments claiming that the government has caused the damages, knowingly allowed actions that contributed to the damages, or failed to provide adequate warnings. Courts and legislative bodies have expanded the basic rules of liability to make governments responsible for actions which result in, or increase, damages to others.

While still commonly held by some local officials as valid, the "Act of God" (sovereign immunity) defense has dramatically reduced over time. To successfully establish an Act of God defense, a governmental unit must prove that a hazard event was both large and unpredictable. This is increasingly difficult because technology has allowed us to foresee future events and identify their impacts.

Most successful suits against communities result from actions such as construction or inadequate maintenance of dams, levees, roads, and bridges that increase damage on other lands. Others arise when communities do not adequately or consistently administer their floodplain management ordinances or rules. Communities are far more likely to be sued for issuing a permit that causes harm than they are for denying a permit, especially if health, safety, and public welfare are the basis for denial of the permit.

The courts have broadly and consistently upheld performance- oriented floodplain regulations, including those that exceed the minimum standards of the National Flood Insurance Program. Regulations that protect the public — such as requiring additional freeboard (additional elevation above the base flood elevation), imposing tighter floodway restrictions, or very tightly regulating high-risk areas such as coastal V-zones — have consistently been upheld by the courts.

Courts have also consistently upheld the validity of floodplain regulations that have been reasonably, fairly, and uniformly administered and enforced and that are aimed at hazard prevention. In recent years, the U.S. Supreme Court has issued a series of opinions strongly endorsing planning and land-use regulations aimed at preventing damage that could be potentially caused by hazardous, unsafe, or unwise development.

Takings, liability, and no adverse impact

Association of State Floodplain Managers research shows that communities that take a "no adverse impact" approach will decrease the potential for successful liability suits from a broad range of government activities, such as building roads and bridges, installing stormwater facilities, building flood control works, grading, constructing public buildings, approving subdivisions and accepting dedications of public works, and issuing building permits.

From a constitutional law perspective, courts are likely to provide strong support in upholding community regulations that adopt a NAI performance standard against claims of unreasonableness or "takings" of private property without payment of just compensation. The NAI standard is consistent with overall common law rights and duties.

Actions that local governments can take to reduce the possibility of a successful takings challenge to regulations include the following:

• Apply performance standards fairly and uniformly to all properties.
• Include special exception and variance provisions in regulations that allow the regulatory agency to issue a permit where a denial will deny a landowner all economic uses of the entire parcel and the proposed activity will not have nuisance impacts.
• Adopt large-lot zoning for floodplain areas, which permits some economic uses (e.g., residential uses) on the nonflood- prone portion of each lot (this approach is detailed in PAS Report 473).
• Allow for the transfer of development rights from floodplain to non-floodplain parcels.
• Do not pursue an Act of God defense as an excuse for inaction — particularly where studies or local data show potential for future flooding, especially resulting from other development in the watershed.

Chad Berginnis is executive director of the Association of Floodplain Managers. Terri Turner is the development services administrator/floodplain manager/hazard mitigation specialist for the Planning and Development Department in Augusta, Georgia. This article is an excerpt from the report Subdivision Design and Flood Hazard Areas, PAS 584.