Richard: Avoiding Unintended House Boats

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Avoiding Unintended House Boats: Towards Sensible Coastal Land Use Policy in Massachusetts
KEITH RICHARD
ABSTRACT
Year in and year out, the ocean swells and sands peacefully erode along the Massachusetts coastline. Every so often, fierce hurricanes, tropical storms, and Noreasters surge to threaten life and property. Annual property damage in flood areas nationwide costs billions of dollars. Nonetheless, people are flocking to the coast as energetically as ever: between 1980 and 2008, populations in coastal areas of Massachusetts grew by fifteen percent and approximately 120,000 Massachusetts residents live in homes less than five feet above sea level. Fragmented local policies and outdated floodplain maps leave open the opportunity for property owners to continue developing in hazardous coastal areas. While New York and New Jersey are painfully reforming their land use policies in the wake of Hurricane Sandy, we need not and should not wait for the next super storm to reassess our strategies. This Note proposes Massachusetts enact a statewide statute governing land use in floodplains to ensure a more sustainable approach to coastal development. It examines current regulatory gaps in Massachusetts, potential constitutional and political hurdles to closing those gaps, and offers specific suggestions that are intended only as starting points for legislators and policymakers. The conclusion sets forth specific recommendations to correct shortcomings and plan for a safer and more sustainable future of coastal land use policy
Candidate for Juris Doctor, New England Law | Boston (2014). B.A., Political Science and History, summa cum laude, University of Massachusetts, Amherst (2009). I would like to dedicate this Note to my parents Paul and Diane, and my sister Kourtney. Thank you to my Aunt Maureen for reading early drafts and my uncle Gerard for his enthusiastic support. Finally, thanks to my teachers at Duxbury High School, where my love for the coastline and interest in public policy first developed.
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in the Commonwealth.
New England Law Review
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INTRODUCTION
ear in and year out, the ocean swells and sands peacefully erode along the Massachusetts coastline.1 Every so often, fierce hurricanes, tropical storms, and Noreasters surge to threaten life and property. 2 Annual property damage in flood areas nationwide costs billions of dollars.3 Coastal land development is nonetheless as energetic as ever.4 This Note argues that Massachusetts should enact a statewide statute governing land use in flood zones to devise a sensible approach to coastal development.5 Effectively mitigating destruction when major storm events strike, requires implementing accurate and comprehensive regulations using up-to-date scientific data.6 After a particularly strong storm season from 20122013, this issue is ripe for legislative attention.7 This Note examines current regulatory gaps in Massachusetts, potential hurdles to closing those gaps, and offers specific suggestions intended as a starting point for legislators and policymakers. In short, our current land use policy is not sustainable.8 While a front-and-center issue in New York and New Jersey following Hurricane Sandys destruction, Massachusetts need not and should not wait for a similar disaster to reassess mitigation strategies. This Note proceeds under the general assumption that further development in coastal areas at high risk of flooding should be avoided, and the current regulatory regime is inadequate to meet present and future flood threats; it concludes by setting forth specific recommendations to correct these shortcomings for a more sustainable future of land use policy in Massachusetts. 9 Part I summarizes the current division of regulatory power between state and local governments and the hazards of unwise development in
See James F. OConnell, Shoreline Armoring Impacts and Management Along the Shores of Massachusetts and Kauai, Hawaii, in PUGET SOUND SHORELINES AND THE IMPACTS OF ARMORINGPROCEEDINGS OF A STATE OF THE SCIENCE WORKSHOP, MAY 2009, at 65 (Shipman et al. eds., 2010), available at http://pubs.usgs.gov/sir/2010/5254/pdf/sir20105254_chap7.pdf.
2 3 4 5 6 7 8 9 1
See infra Part I.C. See infra Part III.A. See infra notes 99101 and accompanying text. See infra Part V. See infra Part V.A. See infra notes 8593 and accompanying text. See infra Part III.B.2. See infra Part V.
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floodplains. Anticipating that comprehensive coastal land regulation will be subject to constitutional challenge, Part II recounts seminal Supreme Court and Massachusetts decisions to conclude that such challenges will likely fail. Part III delves deeper into the public safety and policy considerations at hand and emphasizes legislative action cannot afford further delay. Part IV addresses two likely objectionstakings concerns and political oppositionand finds these obstacles are surmountable. Part V sets out a vision for legislation, funding, and implementing reforms to better prepare Massachusetts for the next storm. I. Background A. The Zoning Power: State and Local Government and Administrative Actors 1. State Delegation of Zoning Powers Under the Massachusetts Constitution
Zoning is defined as [t]he legislative division of a region, esp[ecially] a municipality, into separate districts with different regulations within the districts for land use, building size, and the like. 10 Authority to zone derives from the police power: The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.11 Wielded by state and local governments, zoning pursuant to the police power revolutionized land use planning, and several landmark Supreme Court cases affirmed its validity.12 The scope is broad; the Court later declared: [T]he police power is not confined to a narrow category; it extends . . . to all great public needs.13 The Massachusetts Constitution expressly articulates the legislatures police power: [F]ull power and authority are hereby given and granted to the said general court . . . to make, ordain, and establish . . . orders, laws, statutes, and ordinances . . . as they shall judge to be for the good and welfare of this commonwealth . . . .14 In its most idealized use, the police power grants legislators the ability to limit the external impacts of individuals with
BLACKS LAW DICTIONARY 1757 (9th ed. 2009). Id. at 1276. 12 See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 38687 (1926); Hadacheck v. Sebastian, 239 U.S. 394, 40911 (1915). 13 Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952). 14 MASS. CONST. pt. 2, ch. 1, 1, art. IV.
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benefit to the broader community in mind. 15 2. Localized Land Use Policy
Land use regulation across Massachusetts is a creature of local control, assigned to the various cities and towns.16 Communities derive most of these powers from the Zoning Act, Chapter 40 of the Massachusetts General Laws, which encompasses zoning and other land use enabling provisions.17 Despite the state constitutions considerable delegation of power to municipal governments, local powers are neither inherent nor absolute and ultimately flow back to the grantorthe legislature on Beacon Hill.18 Local governments may thus enact bylaws and ordinances, but the state government retains constitutional authority19 to preempt, displace, or otherwise override local laws.20 3. The Relevant State and Local Actors
In the early 1970s, Congress passed the Coastal Zone Management Act (CZMA), setting out a national approach to coastal regulation in an effort to reform land and water resource policy.21 At the time, Congress found state and local institutional arrangements for planning and regulating . . . inadequate, particularly in light of the substantial value of the coastal zone.22 Massachusetts later led the way with the first federally approved coastal plan establishing the Office of Coastal Zone Management (CZM) to oversee the shoreline of the Commonwealth. 23 In addition to the CZMA, the Disaster Mitigation Act (DMA) provides federal support to state and local governments that elect to develop mitigation and response plans for
15 BARLOW BURKE, UNDERSTANDING THE LAW OF ZONING AND LAND USE CONTROLS 45 (2d ed. 2009).
See MARK BOBROWSKI, HANDBOOK OF MASSACHUSETTS LAND USE AND PLANNING LAW 3 4 (3d ed. 2011) (discussing the decentralized nature of land use law). 17 See MASS. GEN. LAWS ANN. ch. 40A, 1 (West 2004). 18 See Bd. of Appeals of Hanover v. Hous. Appeals Comm. in the Dept of Cmty. Affairs, 294 N.E.2d 393, 40710 (Mass. 1973) (discussing the balance of power between state and local governments under the constitution). See MASS. CONST. amend. art. II, 8. See Hanover, 294 N.E.2d at 40910; Commonwealth v. Town of Hudson, 52 N.E.2d 566, 573 (Mass. 1943) (citations omitted) (emphasizing the supremacy of state power over local government).
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16 U.S.C. 1452 (1976). 1451. See MASS. GEN. LAWS ch. 21A, 4A (2010).
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disaster events like storms and flooding.24 Massachusetts encourages communities to participate in federal incentive programs.25 Under the state statutory umbrella of the Waterways Act and the Wetlands Protection Act, state agencies such as the Department of Environmental Protection (DEP) promulgate wetlands, coastline, and other water regulations, and have the authority to issue licenses and permits.26 These agencies work with and alongside local planning and zoning boards.27 Though primarily tasked with local administration of the Wetlands Act,28 conservation commissions are also significant intermediary bodies in land use decision making. 29 B. The State and Local Bases for Floodplain Regulation 1. State Statutes, Local Enactments, and Key Definitions
Several state statutes govern land in floodplains.30 A floodplain is any comparatively low-lying land that is subject to inundation due to the accumulation or runoff of surface waters from a waterway, lake, or coast.31 Wetlands may be defined as wholly or partially inundated land including marshes, meadows, swamps, and other habitats. 32 The primary state statutes regulating these areas are the Wetlands Act and the Waterways Act.33
24 Patricia E. Salkin, Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation, 38 ENVTL. L. REP. NEWS & ANALYSIS 10158, 10161 (2008) (citing 42 U.S.C. 5121 (2012)).
See MASS. COASTAL HAZARD COMMN., PREPARING FOR THE STORM: RECOMMENDATIONS MANAGEMENT OF RISK FROM COASTAL HAZARDS IN MASSACHUSETTS 15 (2007), available at http://www.mass.gov/eea/docs/czm/stormsmart/chc-final-report-2007.pdf. 26 See 310 MASS. CODE REGS. 10.0110.60 (2009). 27 See Fafard v. Conservation Commn of Barnstable, 733 N.E.2d 66, 7275 (Mass. 2000) (examining the parallel and complimentary permitting powers of the DEP and local authorities).
FOR
28 See BOBROWSKI, supra note 16, at 7 (discussing conservation commissions and their roles, including special permit review, advising municipalities on scenic roads, and responsibility for town forests). 29 See MASS. GEN. LAWS ch. 40, 8C (2010) (establishing and enumerating the responsibilities of conservation commissions). 30 See BOBROWSKI, supra note 16, at 121, 126. 31 Edward A. Thomas & Sam Riley Medlock, Mitigating Misery: Land Use and Protection of Property Rights Before the Next Big Flood, 9 VT. J. ENVTL. L. 155, 159 (2008). 32 See MASS. GEN. LAWS ch. 131, 40 (2010). 33 See id. (codifying the Wetlands Act); MASS. GEN. LAWS ch. 91 (2010) (codifying the
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Practically speaking, these broad statutes set out standards around which local governments may implement bylaws and ordinances pursuant to their delegated powers under the Zoning Act described above. 34 The Zoning Act as codified in 1954 specifically authorized municipalities to regulate land subject to flooding,35 and also appears among the stated purposes of the Act.36 The Massachusetts Supreme Judicial Court (SJC) later confirmed the constitutionality of municipal floodplain regulation.37 Currently, no statewide statute governs floodplain zoning. 38 Each local government therefore controls land use in these areas.39 State government, however, pocketed a regulatory trump card through an exception to 1975 Mass. Act 808, which declares that [n]o zoning ordinance or bylaw shall exempt land or structures from floodplain or wetlands regulations established pursuant to General Laws.40 Few courts have construed the provision; one court rejected a religious institution s argument that certain local exemptions precluded application of the Wetlands Act to its land.41 Local government regulates floodplains through bylaws, ordinances, and mapping.42 Many communities utilize overlay districtsessentially a special zoning district within a larger general zoning district to designate areas prone to flooding.43 This strategy has generally been upheld as
Waterways Act). 34 See supra Part I.A. 35 BOBROWSKI, supra note 16, at 3 (discussing the legislative history of zoning in Massachusetts). 36 See id. at 28 (quoting 1975 Mass. Acts 808, 2A) (Said regulations may include but are not limited to restricting, prohibiting, permitting or regulating: . . . uses of land, including wetlands and lands deemed subject to seasonal or periodic flooding . . . .). 37 See Tpk. Realty Co. v. Town of Dedham, 284 N.E.2d 891, 895 901 (Mass. 1972) (upholding the constitutionality of Dedham floodplain regulation against challenge by a landowner).
38 See Brief for Defendants-Appellees at *34, Doherty v. Planning Bd. of Scituate, 2012 WL 5990303 (Mass. App. Ct. Dec. 3, 2012) (No. 11-P-1198), 2011 WL 5289389.
See Lovequist v. Conservation Commn of Dennis, 393 N.E.2d 858, 863 (Mass. 1979). MASS. GEN. LAWS ch. 40A, 3 (2010). 41 See S. New Eng. Conference Assn of Seventh-Day Adventists v. Town of Burlington, 490 N.E.2d 451, 45355 (Mass. App. Ct. 1986). 42 See, e.g., HALIFAX, MASS., CODE: ZONING 16715.A (1990), available at http://www. halifax.ma.us/Pages/HalifaxMA_Clerk/halifaxcode/chapter167.pdf (The Floodplain District is herein established as an overlay district.); S. Kemble Fischer Realty Trust v. Bd. of Appeals of Concord, 402 N.E.2d 100, 10304 (Mass. App. Ct. 1980) (upholding validity of overlay flood district in Concord).
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See supra note 42 and accompanying text.
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Federal Influence Down to Local Government
Though regulated on a local level,45 active floodplain management in part springs from federal programs such as the National Flood Insurance Program (NFIP).46 The program provides incentives to communities for participating.47 Communities, for their part, must agree to adopt corrective and preventative floodplain management regulations that will reduce future flood damages.48 The NFIP subsidizes flood insurance and is forced to borrow substantially to operate, facing close to $20 billion in cumulative debt.49 The Federal Emergency Management Agency (FEMA) administers the NFIP, producing Flood Insurance Rate Maps (FIRMs) detailing Special Flood Hazard Areas (SFHAs).50 SFHAs delineate the floodplain: an area with a greater than one percent chance of flooding in any given year, i.e., the reach of the hundred-year flood.51 Federal maps and floodplain designations serve as guidelines for some communities in Massachusetts,52 but are by no means binding.53
44 See, e.g., Tpk. Realty Co. v. Town of Dedham, 284 N.E.2d 891, 89394, 901 (Mass. 1972); Turner v. Town of Walpole, 409 N.E.2d 807, 808 (Mass. App. Ct. 1980) (rejecting landowners challenge of his lands designation as a floodplain overlay district absent evidence his property was not subject to flooding).
See infra Part I.A.3. See The National Flood Insurance Program, MASS.GOV (2013), http://www.mass.gov/ eopss/agencies/mema/hazard-mitigation/floodplain-mgmt/the-national-flood-insuranceprogram.html. 47 See id. 48 Id. 49 See WOODS HOLE SEA GRANT ET AL., MODEL BYLAW FOR EFFECTIVELY MANAGING COASTAL FLOODPLAIN DEVELOPMENT 5 (2009) [hereinafter MODEL BYLAW], available at http://nsgl.gso.uri.edu/hawau/hawaut09001.pdf.
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Thomas & Medlock, supra note 31. See 44 C.F.R. 59.1 (2006). 52 See, e.g., QUINCY, MASS., ZONING CODE 8.1.2 (2011), available at http://www.quincy ma.gov/CityOfQuincy_Content/documents/forms/Zoning_Ordinance_Document.pdf (The [Floodplain Overlay District] includes all special flood hazard areas designated on the Quincy [FIRM] issued by [FEMA] for the administration of [NFIP] . . . which map indicates the 100year regulator floodplain.).
51 53 See FEMA, ANSWERS TO QUESTIONS ABOUT NFIP 4 (2011), available at http://www.fema. gov/library/viewRecord.do?id=1404 (stating that community participation in the NFIP program is voluntary).
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Local Enactments in Massachusetts: Significant Variation
Acting upon the broad delegation of zoning power conferred by the state legislature, local bylaws and ordinances differ from town to town and city to city.54 Decentralized governance has advantages: flexibility to meet unique local concerns and eye-level accountability (participants often happen to be your neighbors), but it also has disadvantages: frustrating feuds, idiosyncratic bureaucracy, and of course, the much-loathed politics.55 Within this framework, varying approaches to development in floodplains have emerged.56 Several coastal communities have enacted zoning regulations that significantly restrict development in flood areas. 57 On Cape Cod, the Town of Chatham created a special conservancy district encompassing the hundred-year floodplain.58 The bylaw absolutely bars any residential development within the district.59 Nantucket Islands wetland regulations restrict development on land subject to coastal storm flowage, specifically prohibiting fuel and septic tanks within the hundred-year floodplaineffectively barring amenities for a habitable residence.60 Federal policy, specifically the NFIP, appears to influence local bylaws, some of which mirror FEMA jargon.61 Somewhat surprisingly, the federal influence of the NFIP program
BOBROWSKI, supra note 16, at 34. See RICHARD F. BABCOCK, THE ZONING GAME: MUNICIPAL PRACTICES AND POLICIES 2030 (1966); see BOBROWSKI, supra note 16, at 34. 56 See infra notes 5770 and accompanying text. 57 See, e.g., QUINCY, MASS., ZONING CODE 8.1.5 (2011), available at http://www.quincy ma.gov/CityOfQuincy_Content/documents/forms/Zoning_Ordinance_Document.pdf (In the [Floodplain Overlay District], no new building or structure shall be erected, constructed, altered, enlarged or moved and no dumping, filling or earth transfer or relocation shall be permitted.).
55 58 STORMSMART COASTS, CASE STUDY A CAPE COD COMMUNITY PREVENTS NEW RESIDENCES IN FLOODPLAINS 1 (2008), available at http://www.mass.gov/eea/docs/czm/ stormsmart/ssc/ssc3-chatham.pdf [hereinafter CAPE FLOODPLAIN]. 59 Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 86869 (Mass. 2005). 60 See NANTUCKET, MASS., WETLAND PROTECTION REGULATIONS 2.10 (2008), available at http://www.nantucket-ma.gov/Pages/NantucketMA_Conservation/WetRegs08.pdf. 61 See, e.g., id. (setting out regulations for land subject to coastal storm flowage). Land Subject to Coastal Storm Flowage (LSCSF) is a concept developed by FEMA and integrated in Massachusettss policy. See MASS. OFFICE OF COASTAL ZONE MGMT., PREPARING FOR THE STORM: RECOMMENDATIONS FOR MANAGEMENT OF RISK FROM COASTAL HAZARDS IN MASSACHUSETTS 6, 17 (2007), available at http://www.mass.gov/eea/docs/czm/stormsmart/chcfinal-report-2007.pdf. 54
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does not necessarily make for accurate floodplain maps or effective coastal land use management.62 The Town of Scituate, for example, has not updated its floodplain map establishing the boundaries of its flood-overlay district since enactment in 1972,63 despite participation in the program. 64 As a result, a landowner seeking permits to build two residences on adjacent lots was successful in overturning a permit denial due in part to the Scituate Planning Boards reliance on FEMA data. 65 Although ample evidence at trial demonstrated the land flooded (the reach of the nearby Atlantic had obviously changed over forty years), the court ordered the Planning Board to grant the permits.66 Construing the issue as a matter of law, the court refused to look outside the 1972 floodplain map to determine whether the land was subject to flooding.67 The 1972 map was a product of local knowledge and analysis 68 and predated advanced FEMA floodplain data; the Board unsuccessfully argued such data could be considered to determine whether the property was subject to flooding.69 The decision sheds light on a significant policy gap in Massachusettsland may be factually but not legally subject to flooding, thus permitting development in hazardous areas. 70 C. The Threat to Massachusetts Land Situated in Floodplains The importance of wise land use management along the approximately 1,500 miles of Massachusetts coastline cannot be overstated. 71 Rising sea
See infra notes 6370. See Doherty v. Planning Bd. of Scituate, No. 11-P-1198, 2012 WL 5990303, at *2 (Mass. App. Ct. Dec. 3, 2012), review granted by 984 N.E.2d 295 (Mass. 2013). As this Note goes to press, the SJC will hear oral arguments sometime in Fall 2013 and is currently soliciting amicus briefs. Amicus Announcement, SUPREME JUDICIAL COURT (May 13, 2013, 3:35 PM), http://www.mass.gov/courts/sjc/amicus/sjc-11401.html. 64 FEMA, COMMUNITIES PARTICIPATING IN THE NATIONAL FLOOD PROGRAM 6 (2013), available at http://www.fema.gov/cis/MA.pdf.
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Doherty, 2012 WL 5990303, at *23. See id. at *24. 67 See id. at *34 (It is a different question altogether whether the 1972 map is outdated, given more recent flood science, as the board suggests. We are not prepared nor authorized to rewrite the zoning by-law.).
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See Brief for Defendants-Appellees, supra note 38, at *36. See id. at *26. 70 Doherty, 2012 WL 5990303, at *34. 71 See StormSmart CoastsThe Mass. Coastal Hazards Commn, MASS. OFF. OF COASTAL ZONE MGMT., http://www.mass.gov/eea/agencies/czm/program-areas/stormsmart-coasts/coastalhazards-commission/ (last visited Oct. 22, 2013); supra Part I.C.
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levels, intensifying storm patterns, flooding, and erosion all pose significant threats to the safety of people and property in coastal areas. 72 Naturally, the flood threat is most pronounced in low-lying lands and damage is often greatest there, both to private property and public infrastructure.73 1. Past and Present Storms and Coastal Damage in Massachusetts
Throughout its history, Massachusetts has experienced large and powerful storms.74 In February 1978, a massive blizzard (remembered as The Blizzard of 78) struck the state, dumping several feet of snow and stirring significant coastal wave action, flooding, and destruction. 75 New Englanders are popularly known for their hearty resistance to wintry and snowy conditions; the fact that locals still talk about The Blizzard of 78 with awe gives a sense of its significance.76 The Blizzard of 78 fundamentally altered the beach landscape.77 Towns with densely developed coastlines, such as Revere, Winthrop, Scituate, and Hull were decimated: [W]ind-driven waves thundered over seawalls, sweeping homes into the ocean, flooding coastal neighborhoods and stranding scores of frightened coastal dwellers. Seas crested at 16 feet above normal, turning homes blocks away from the shore into ocean front dwellings.78 Conversely, the less-developed outer coast of Duxbury and eastern coast of Cape Cod experienced minimal property damage. 79
See MASS. OFFICE OF COASTAL ZONE MGMT., POLICY GUIDE 2021 (2011), available at http://www.mass.gov/eea/docs/czm/fcr-regs/czm-policy-guide-october2011.pdf [hereinafter POLICY GUIDE]. 73 See id. at 1921. 74 See generally John Galvin, The New England Hurricane: New York, Connecticut, Rhode Island, Massachusetts, Vermont, September 1938, POPULARMECHANICS.COM (July 30, 2007), http://www. popularmechanics.com/science/environment/natural-disasters/4219867?series=31; The Storm of the Century, THE BLIZZARD OF 78, http://www.blizzardof78.org/ (last visited Oct. 22, 2013).
75 THE ARMY CORPS OF ENGINEERS , A REPORT ON THE ASSESSMENT OF FLOOD DAMAGES RESULTING FROM THE STORM OF 67 FEBRUARY 1978 ALONG THE COASTLINE FROM ORLEANS, MASSACHUSETTS TO NEW CASTLE, NEW HAMPSHIRE iii, 11 (1979) [hereinafter 1978 FLOOD DAMAGES]. 76 See The Storm of the Century, THE BLIZZARD OF 78, http://www.blizzardof78.org/ (last visited Oct. 22, 2013) (recounting the 1978 blizzard and the significance of winter weather in New England folklore). 77 78 79
72
MICHAEL TOUGIAS, THE BLIZZARD OF 78, at 3334 (2003). Id. at 33. 1978 FLOOD DAMAGES, supra note 75, at 11, 13.
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An Army Corps of Engineers Report cited the blizzard as a reminder of the high public and private cost of continued occupancy of the coastal hazard area, especially the human costmost casualties occurred in those areas.80 Public and private property damage exceeded $257 million 81 almost $900 million in 2012 dollars.82 In all, the storm destroyed 339 homes and severely damaged more than 1,000, while another 5,503 homes reported some damage.83 Fast forward to 2013, and winter storms continued to pound the shoreline.84 Plum Island may be the most glaring symbol in Massachusetts of storm power, erosion trends, and the futile effort to protect increasingly vulnerable homes.85 While a single storm event may not necessarily pose a serious threat, the cumulative impact of a strong storm season, such as the winter of 20122013, reveals the real hazard of unwise coastal development.86 In fall 2012, Hurricane Sandy began a rapid erosion of Plum Island.87 In response, residents employed beach scraping: a controversial procedure of bulldozing sand into artificial dunes (actually believed to contribute further to erosion) to keep the ocean at bay. 88 The effort was to no avail, as the ocean swept the sand away and then some. 89 By February 2013, a Noreaster named Nemo brought record snow falls, strong wave action,
Id. at ii. Id. at tbl.10a. 82 S. Morgan Friedman, THE INFLATION CALCULATOR, http://www.westegg.com/inflation/ (last visited Oct. 22, 2013) (displaying $257 million in 1978 dollars adjusted for inflation as of 2012). These estimates are likely very conservative in light of the booming value of coastal property in Massachusetts over the past several decades. See, e.g., Val Feeney, Insurance Options Near the Coast, Why So Limited?, ANDREW G. GORDON, INC. (Oct. 5, 2011, 4:46PM), http://www.agordon.com/blog/bid/80545/Insurance-Options-Near-the-Coast-Why-SoLimited. 83 See 1978 FLOOD DAMAGES, supra note 75, at tbl.1. 84 Chris Dolce, Winter Storm Nemo: Historic Blizzard Pounds New England , WUNDERGROUND. COM (Feb. 9, 2013), http://www.wunderground.com/news/winter-storm-nemo-20130206. 85 See Billy Baker, On Plum Island, Another Punishing Storm, BOS. GLOBE (Dec. 28, 2012), http://www.bostonglobe.com/metro/2012/12/28/storm-damages-four-beachfront-homes-plumisland/l4tvMtDxSMSo7SDYp1YXGL/story.html.
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See infra notes 8793. Blizzard Nemo Hammers Plum Island, PLUM ISLAND CHRONICLES (Feb. 9, 2013), http:// plumislandchronicles.com/2013/02/blizzard-nemo-hammers-plum-island/ [hereinafter PLUM ISLAND].
87 88 89
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and coastal flooding,90 further eroding the beach and placing a number of properties at risk.91 When yet another storm hit in March, one home fell off its foundation towards the sea, several others had to be torn down, and about a dozen remained uninhabitable. 92 In this sense, erosion has a reverse-snowball effect, multiplying the risk to property following a series of successive storms as more and more sand washes away. 93 2. Climate Change, Sea Level Rise, and Massachusetts Coastal Land
Political leaders are increasingly paying attention to climate change and its impact upon areas like Plum Island.94 Scientists vigorously debate projected global temperatures and the resulting effect upon sea levels. 95 But sea levels need not rise at alarming rates (or at all) for floods to destroy homes in a major storm event.96 This reality, rather than the precise cause or timing, is the true concern: recent experience demonstrates that intense storms have increased in frequency and caused previously unforeseen levels of damage.97 The concept is not controversial science built upon
Chris Dolce, Winter Storm Nemo: Snow, Wind, Coastal Flood Reports, WUNDERGROUND.COM (Feb. 9, 2013), http://www.wunderground.com/news/winter-storm-nemo-reports-20130208? pageno=3. 91 See PLUM ISLAND, supra note 87. 92 2 Plum Island Homes Demolished After Winter Storm, WHDH-TV7NEWS (Mar. 9, 2013, 9:55 AM), http://www1.whdh.com/news/articles/local/north/10010053751682/2-plumisland-homes-demolished-after-winter-storm/. 93 See supra notes 8592 and accompanying text. 94 See, e.g., Media Advisory: Markey to Survey Nemo Damage, CONGRESSMAN ED MARKEY (Feb. 15, 2013), http://markey.house.gov/press-release/media-advisory-markey-survey-nemodamage-erosion-plum-island. 95 See, e.g., Andrew C. Revkin, Fresh-Analysis of the Pace of Warming and Sea-Level Rise, N.Y.TIMES.COM (May 9, 2013, 8:09 AM), http://dotearth.blogs.ny times.com/02013/05/09/fresh-analysis-of-the-pace-of-warming-and-sea-level-rise/. 96 See Benjamin Strauss & Robert Kopp, Rising Seas, Vanishing Coastlines, N.Y. TIMES: SUNDAY REVIEW (Nov. 24, 2012), http://www.nytimes.com/2012/11/25/opinion/sunday/risingseas-vanishing-coastlines.html (describing the doubled chance of a once in a century flood due to the eight-inch sea level rise). 97 See, e.g., David V. Simunovich, The Quiet of Dissolution: Post-Disaster Redevelopment and Status-Preserving Compensation, 38 SETON HALL L. REV. 331, 33132 (2008) (discussing damage from Hurricane Katrina); Matthew Craft, Hurricane Sandys Economic Damage Could Reach $50 Billion, Eqecat Estimates, HUFFPOST BUS. (Nov. 1, 2012, 7:19 PM), http://www.huffingtonpost. com/2012/11/01/hurricane-sandy-economic-damage_n_2057850.html.
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speculative models.98 Yet we continue to build and reside in harms way: between 1980 and 2008, populations in Massachusetts coastal areas grew by fifteen percent. 99 Over 120,000 Massachusetts residents live in areas less than five feet above sea level.100 These areas cover 48,000 acres, upon which approximately 67,000 homes sit.101 The Supreme Court has taken notice: the unique threat to Massachusetts was sufficiently substantial and imminent to confer Article III standing to sue the Environmental Protection Agency for their failure to regulate greenhouse gases.102 Writing for the Court, Justice Stevens observed:
[G]lobal sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming . . . . These rising seas have already begun to swallow Massachusetts coastal land . . . . Because the Commonwealth owns a substantial portion of the states coastal property, . . . it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events. . . . Remediation costs . . . could run well into the hundreds of millions of dollars.103
With this in mind, how are citizens and leaders to plan for life in the twenty-first century and beyond?104 II. The Law Favors and Underscores the Need for Rigorous Coastal
98 See Andrew C. Revkin, On Hurricanes, Presidents, Climate and One Clear Human Factor in the Sandy Disaster, N.Y. TIMES DOTEARTH BLOG (Nov. 1, 2012, 5:01 PM), http://dotearth. blogs.nytimes.com/2012/11/01/hurricanes-inkblots-agendas-and-climate-sens/ (chronicling a vigorous debate between climate scientists as to whether Hurricane Sandy can be directly attributed to climate change). 99 See NATL OCEANIC AND ATMOSPHERIC ADMIN. ET AL., POPULATION TRENDS ALONG THE COASTAL UNITED STATES: 19802008, at 35 (2004), available at http://oceanservice.noaa.gov
/programs/mb/pdfs/coastal_pop_trends_complete.pdf. 100 CLIMATE CENTRAL, FACTS AND FINDINGS: SEA LEVEL RISE AND STORM SURGE THREATS FOR MASSACHUSETTS 1 (2012), available at http://slr.s3.amazonaws.com/factsheets/ Massachusetts.pdf. 101 Id. 102 See Massachusetts v. E.P.A., 549 U.S. 497, 521 (2007). 103 Id. at 52223 (internal citations omitted). 104 See id.
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Any bold land use enactment that seeks to regulate coastal property would likely be subject to legal challenges by individual property owners.105 The law of regulatory takings and its application in Massachusetts will be important to consider the likelihood and success of these suits.106 In short, the Supreme Court has since retreated from the rule crafted in a seminal coastal land use case107 and the highest court in Massachusetts has upheld an ordinance prohibiting residential floodplain development. 108 Thus, in passing a state-wide floodplains statute, Massachusetts legislators stand on firm constitutional ground.109 A. Regulatory Takings 1. Overview of Takings Law
In the United States, various levels of government retain broad police power to regulate for public health, safety, and welfare.110 This power, however, has limits: the Fifth Amendment requires that the government provide just compensation for property taken for public use.111 This constitutional protection applies not only to literal taking of property through eminent domain, but also to government actions that impact an individuals property so substantially as to have constructively taken his or her rights from the land.112 Under the law of regulatory takings, government regulations that go too farimposing unfair burdens upon individuals without tangible benefitsrequire the state to pay compensation.113 The burden upon a challenger is substantial: litigants in early takings cases who suffered substantial property diminution due to
See infra Part I.A.2.3. See id. 107 See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); see also infra Part IV.A.1. 108 See Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 872 (Mass. 2005). 109 See CAPE FLOODPLAIN, supra note 58, at 23. 110 Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 36 n.6 (1964); see also supra Part I.A.1 (discussing the police power). 111 U.S. CONST. amend. V ([N]or shall private property be taken for public use, without just compensation.). 112 See Pa. Coal Co. v. Mahon, 260 U.S. 393, 41516 (1922). 113 Id.; see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 140 (1978) (Rehnquist, J., dissenting) (citing Armstrong v. United States, 364 U.S. 40, 49 (1960)).
106
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zoning regulations failed to state compensable claims.114 When precisely does a regulation move from justifiable regulation to a compensable taking? From the mid-twentieth century through modern times, commentators,115 and even the Court itself, observed that the case law represents a body of inconsistent results. 116 Nonetheless, the Supreme Court has attempted to craft bright-line rules, and thus modern takings jurisprudence contemplates several different scenarios under which a regulation rises to a taking. 117 The following categorical, or per se takings, may be found without regard for the purported justifications put forth by the government: first, government regulations that result in the permanent physical invasion of one s property;118 and second, regulations that completely deprive owners of all economically beneficial use of their property (known as a total taking).119 A total taking must be totaleven a dramatic near-total diminution in value does not qualify.120 If neither categorical analysis applies, courts inquire into: (1) the regulations economic impact; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.121 Takings claims examined under this so-called ad hoc test are much more difficult to establish because unlike categorical takings, the court balances the social benefits against the harm
114 See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 38487 (1926) (concluding that 75% depreciation did not effect a taking); Hadacheck v. Sebastian, 239 U.S. 394, 40911 (1915) (holding that an ordinance lessening property value from $800,000 to $60,000 was not a taking). 115 F. Patrick Hubbard et al., Do Owners Have a Fair Chance of Prevailing Under the Ad Hoc Regulatory Takings Test of Penn Central Transportation Company? , 14 DUKE ENVTL. L. & POLY F. 121, 126 (2003); Sax, supra note 110, at 37 (relating that another commentator described divergent Supreme Court decisions as a crazy-quilt pattern).
See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005) ([O]ur regulatory taking jurisprudence cannot be characterized as unified.). 117 See id. at 53839. 118 See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 43435, 438 (1982) (finding that regulation forcing landlord to allow cable company to install wires on apartment building, though minor, was a physical interference that rose to a taking). 119 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 100607, 103032 (1992) (holding state coastal zoning law prohibiting construction on beachfront lot rendered parcel valueless and thus required compensation).
120 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regl Planning Agency, 535 U.S. 302, 330 (2002). 121 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
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to the individual property owner.122 2. Takings in the Coastal and Wetlands Context
Attempts by government to regulate and manage coastal property have given rise to a number of takings suits. In Lucas v. South Carolina Coastal Council, Plaintiff David Lucas purchased two residential-zoned beachfront parcels for $975,000 prior to the South Carolina State Legislature enacting the Beachfront Management Act (BMA).123 The Act sought to mitigate erosion by banning residential development and effectively prohibited Lucas from building homes upon the vacant parcels. 124 Relying upon the lower courts finding that the land, as regulated, had no economic value, the Court concluded the regulation rose to a total taking requiring compensation.125 Writing for the majority, Justice Scalia qualified the total taking rule: [a]ny limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State s law of property and nuisance already place upon land ownership.126 Thus, one cannot complain of a taking when the regulation restricts a right that never existed in the first place.127 The Supreme Court revisited regulatory takings in the land use context in Palazzolo v. Rhode Island.128 The Court ultimately split on issues of justiciability, but largely reaffirmed and clarified Lucas.129 Petitioner Anthony Palazzolo originally purchased three adjoining parcels in 1959 and tried unsuccessfully to develop the properties.130 Situated mostly upon salt marsh wetlands, state agencies denied applications to fill and build upon the land during the 1960s.131 By the time Palazzolo reapplied during the 1980s, Rhode Island had reformed its
122 See Robert S. Mangiaratti, Regulatory Taking Claims in Massachusetts Following the Lingle and Gove Decisions, 90 MASS. L. REV. 54, 5758, 61 (2006). 123 Lucas, 505 U.S. at 100607. 124 See id. at 100709. 125 Id. at 1007, 1009, 102729, 1031. 126 Id. at 1029. 127 Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 874 (Mass. 2005) (citing Lucas, 505 U.S. at 1030) (The takings clause was never intended to compensate property owners for property rights they never had.). 128 129 130 131
533 U.S. 606, 61516 (2001). See id. at 62324, 62930; Mangiaratti, supra note 122, at 62. Palazzolo, 533 U.S. at 613. See id. at 614.
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legislative and regulatory regime.132 Under the new law, such a fill project required a special exemption, which required an applicant to demonstrate a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests. 133 After the regulatory commission rejected another application, Palazzolo brought suit alleging a total taking demanding over $3 million in compensationthe amount of a fully developed subdivision project on the site.134 Justice Kennedy, writing for the majority, pointed to the fact that Palazzolo retained a buildable portion of the land valued at approximately $200,000 and affirmed the lower courts finding that no total taking occurred.135 In so doing, the Court emphasized that a total taking will not be found where property has some (albeit substantially marginalized) value.136 After finding no total taking, the Court remanded the case for application of the ad hoc test.137 On remand, the Rhode Island trial court concluded that no regulatory taking had occurred.138 3. Coastal Regulatory Takings in Massachusetts
The Supreme Judicial Court of Massachusetts applied Lucas and Palazollo in Gove v. Zoning Bd. of Appeals of Chatham .139 Gove represents the most recent significant state court decision on coastal regulatory takings.140 Roberta Gove, the owner of a vacant lot on the coast of Chatham, entered a contract in 1998 to sell the parcel conditioned upon approval of permits to build a home.141 More than ten years prior, after several severe storms and increasing safety concerns, Chatham designated all land within the hundred-year floodplain (including Goves property) a conservancy district.142 The zoning board, citing the restrictions, denied permits to
See id. at 61416. THE STATE OF RHODE ISLAND, COASTAL RESOURCES MANAGEMENT PROGRAM, 130A(1) (2010), available at www.crmc.ri.gov/regulations/RICRMP.pdf; see Palazzolo, 533 U.S. at 615.
133 134 135 136 137 138
132
Palazzolo, 533 U.S. at 61516. Id. at 63032. See id. at 63032. See id. at 132. Palazzolo v. State, No. WM 880297, 2005 WL 1645974, at *15 (R.I. Super. Ct. July 5, 831 N.E.2d 865 (Mass. 2005). See Mangiaratti, supra note 122, at 54. Gove, 831 N.E.2d at 869. Id. at 868.
2005).
139 140 141 142
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build.143 Gove brought suit against the town and the zoning board, asserting that the conservancy district restrictions: (1) did not substantially further a legitimate public purpose; (2) deprived her of all beneficial economic use of the property; and (3) frustrated her reasonable investment-backed expectations to develop the land.144 Dismissing the first argument, the court cited substantial evidence that the ordinance sought to protect first responder personnel and mitigate damage to surrounding houses during storm events.145 Next, applying Lucas in light of Palazzolo, the court considered whether a total taking occurred.146 Observing that the parcel, as regulated, had been appraised at $23,000, the court found Gove retained more than a token interest and thus was not totally deprived of all economically viable use of the land. 147 Applying the ad hoc factors, the court found the regulation did not contravene Goves distinct investment-backed expectations.148 The opinion concluded by noting that reasonable government measures designed to prevent unwise coastal development are not generally compensable as regulatory takings.149
ANALYSIS
III. Intensifying Storms Coupled With Continued Coastal Development Requires Action A. The Threat of Future Storm Events Requires Sustainable Land Use Policies. Localized decisions, while advantageous in certain respects, should yield to statewide regulation in matters of extraordinary concern. 150 Flood
Id. at 869. Id. at 870. 145 See id. at 871 & n.13. 146 See id. at 87172. 147 Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 872 (Mass. 2005) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001)). 148 Id. at 87374. 149 Id. at 875 (Reasonable government action mitigating such harm, at the very least when it does not involve a total regulatory taking or a physical invasion, typically does not require compensation.).
144 150 See, e.g., MASS. GEN. LAWS ch. 40A, 3 (2010) (declaring that no local ordinances may conflict with statewide wetlands enactmentsan area of ecological concern).
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threats present such a case.151 Storm threats along the vast Massachusetts coastline fall upon no single community, and floodplains often span several municipalities.152 As an enormously complex public policy problem, solutions require a unified approach. 153 The Doherty case demonstrates that disparate floodplain regulations across Massachusetts have failed to properly address this issue 154 and have left our communities vulnerable.155 Massachusetts need not consult scientific projections to see that further floodplain development is an unwise course. 156 Scholarly consideration and criticism of floodplain land use policy often invokes familiar literary and biblical quotes.157 These quips and maxims convey similar messages: building on land that floods isto say the leasta poor decision.158 One cannot call a disastrous event an act of God unless you further assume that God made the property owner choose to build where flooding was a foreseeable (even probable) risk.159 Historically, such poor judgment might not have given rise to legal liability.160 Advancing technology, however, increases the foreseeability of flood hazards and may heighten the probability of a successful negligence action.161
See infra Part IV. See Daniel D. Barnhizer, Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts, 27 HARV. ENVTL. L. REV. 295, 339 (2003). 153 See Meg Caldwell & Craig Holt Segall, No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast, 34 ECOLOGY L.Q. 533, 535 (2007); NYS 2100 COMMISSION, RECOMMENDATIONS TO IMPROVE THE STRENGTH AND RESILIENCE OF THE EMPIRE STATES INFRASTRUCTURE 139 (2012), available at http://www.governor.ny.gov/assets/ documents/NYS2100.pdf [hereinafter NYS 2100 COMMISSION]. 154 See Doherty v. Planning Bd. of Scituate, No. 11-P-1198, 2012 WL 5990303, at *2 (Mass. App. Ct. Dec. 3, 2012); supra Part I.B.3. 155 See supra Part I.B.3. 156 See infra notes 15759 and accompanying text. 157 See, e.g., Barnhizer, supra note 152, at 295 (quoting Matthew 7:2627) (New American Standard Bible) ([A] foolish man . . . built his house on the sand. The rain fell, and the floods came, and the winds blew and slammed against that house; and it felland great was its fall.); Thomas & Medlock, supra note 31, at 155 (internal citation omitted) (Floods are acts of God, but flood losses are largely acts of man.). 158 See Thomas & Medlock, supra note 31, at 164. The authors quote William John McGee: As population has increased, men have not only failed to devise means for suppressing or for escaping this evil of floods, but have a singular short-sightedness, rushed into its chosen paths. Id.
152 159 160 161 151
Id. at 155. See id. at 166. See Barr v. Game, Fish & Parks Commn, 497 P.2d 340, 344 (Colo. App. 1972) (holding
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Consider this: damage caused to property in flood areas costs, on average, $5 billion per year nationwide 162 and $10 billion per year over the first decade of the twenty-first century.163 The damage is understandable where houses have stood for decades or centuries previously unharmed, but we continue to build in these areasmany of the fastest growing counties in the United States are those most at risk of disaster.164 Building near the beach was not always so popular; recreational value of coastal property is of relatively recent vintage 165 and the residential development boom there only really took off in the 1970s.166 Floodplain management, by some accounts, saves $1.1 billion per year in prevented damage.167 But this figure is dwarfed by average yearly damage, particularly after large storms: at approximately $120 billion, Hurricane Katrina168 was the most expensive and third-deadliest natural disaster in American history.169 More than seven years and billions of dollars later,170 Hurricane Sandy walloped the east coast causing an additional $65 billion in damage. 171 Nevertheless, the fervor to rebuild in
defendant municipality liable for flood damage in light of foreseeability of storm and attendant flood that overwhelmed a dam). See Salkin, supra note 24, at 10160. See JON KUSLER, FLOOD RISK IN THE COURTS: REDUCING GOVERNMENT LIABILITY WHILE ENCOURAGING GOVERNMENT RESPONSIBILITY 7 (Sam Riley Medlock ed., 2011), available at http://floods.org/acefiles/documentlibrary/Legal_Papers/Flood_Risk_in_the_Courts_102411.pdf.
163 162
See FEMA, PLANNING FOR A SUSTAINABLE FUTURE: THE LINK BETWEEN HAZARD MITIGATION AND LIVABILITY 7 (2000), available at http://www.fema.gov/library/viewRecord. do?id=1541. 165 See Carol M. Rose, The Story of Lucas: Environmental Land Use Regulation Between Developers and the Deep Blue Sea, in ENVIRONMENTAL LAW STORIES 237, 271 (Lazarus et al. eds., 2005) (chronicling the shift from European settlers only beginning to enjoy the beach in the eighteenth century to railways revolutionizing beach tourism in the late nineteenth century). See Barnhizer, supra note 152, at 30809. See Michael Buckley, Helping the Gulf Coast Rebuild Stronger and Smarter, FEMA (Mar. 2006), http://www.ofcm.gov/ihc06/Presentations/00%20opening/05-Buckley-FEMA.pdf. 168 Martin Wolk, How Hurricane Katrinas Costs Are Adding Up, NBCNEWS.COM (Sept. 13, 2005, 7:30 PM), http://www.nbcnews.com/id/9329293/ns/business/eye_on_the_economy/ t/how-hurricane-katrinas-costs-are-adding/#.UfGPgG2M7To. 169 Simunovich, supra note 97, at 331. 170 See CONG. BUDGET OFFICE, COST ESTIMATE: HR 2903 FEMA REAUTHORIZATION ACT OF 2012, at 1 (2012), available at https://www.cbo.gov/sites/default/files/cbofiles/attachments/ hr2903.pdf (authorizing over two billion dollars to the Federal Emergency Management Agency alone).
167 171 166
164
HURRICANE SANDY REBUILDING TASK FORCE, HURRICANE SANDY REBUILDING STRATEGY
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the same spot abounds!172 One poll found that two-thirds of New Yorkers believe that another storm of Sandys magnitude will strike within the next ten years, but nine-out-of-ten believe the areas destroyed should be rebuilt in their entirety.173 The American belief that coming back stronger is the way to respond after natural disasters may drive such a response.174 Although Sandy did not cause significant damage in Massachusetts, 175 our state should not wait for the next super storm to motivate sensible land use practices and hazard mitigation.176 B. Government Should Formulate a Mitigation Strategy to Prevent the Foreseeable. 1. Safety Hazards and Liability in the Wake of a Major Flood Event
There are good reasons to hesitate before permitting floodplain construction.177 From an environmental standpoint, preserving ecology and natural resources can be achieved through limitations on filling wetlands and armoring the beach.178 This would help prevent owners who try to protect their homes against erosion with control devices 179structures that actually exacerbate the overall rate of erosion and harm the environment. 180
21-22 (2013), available at http://portal.hud.gov/hudportal/documents/huddoc?id=HSRe buildingstrategy.pdf 172 See Guelda Voien, Most New Yorkers Believe Coastal Areas Should Be Rebuilt in Sandys Wake, THE REAL DEAL (Dec. 13, 2012, 3:30 PM), http://therealdeal.com/blog/2012/12/13/mostnew-yorkers-believe-coastal-areas-should-be-rebuilt-in-sandys-wake/. 173 Id. 174 See Justin Gillis & Felicity Barringer, As Coasts Rebuild and U.S. Pays, Repeatedly, Critics Ask Why, N.Y. TIMES (Nov. 18, 2012), http://www.nytimes.com/2012/11/19/science/earth/ascoasts-rebuild-and-us-pays-again-critics-stop-to-ask-why.html. The authors interviewed one expert who summarized this attitude: Were Americans, damn it . . . [r]etreat is a dirty word. Id. 175 See Mass. Cleans Up After Escaping Full Brunt of Sandy, WBUR (Oct. 30, 2012), http://www.wbur.org/2012/10/30/mass-returning-normal-sandy. 176 See infra Parts 00. 177 See infra notes 17383 and accompanying text. 178 See James G. Titus, Does the U.S. Government Realize that the Sea Is Rising? How to Restructure Federal Programs So that Wetlands and Beaches Survive, 30 GOLDEN GATE U. L. REV. 717, 719 (2000).
179 See, e.g., Scott Glass, Tr. of Hill and Dale Nominee Trust, No. WET2009040, 2011 WL 1688966, at *12 (Mass. Dept. Envtl. Prot. Apr. 1, 2011) (recommended final decision) (concerning coastal property owner seeking to construct a rock revetment to curb erosion). 180
See StormSmart CommunitiesMaintaining Seawalls and Other Structures, MASS. OFF. OF
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Far more significant are concerns for the safety and security of coastal residences and their occupants. 181 Wave action brings water, sand, rocks, and other debris onto land and into homes. 182 Flooded basements can cause electrical fires.183 Such destruction not only affects the homes directly impacted, but also those situated literally downstream.184 Houses often have structural features that can break off and cause significant collateral damage.185 Development also increases impervious surface area, inhibiting the grounds absorption of water and diverting waters to neighboring property,186 some of which may rest outside the floodplain. 187 Ultimately, coastal flooding creates a total public safety problem where residents in the path of destruction, their neighbors, and the public safety personnel tasked with their protection are all placed at risk.188 Mitigating these undesirable consequences falls squarely within the governments historic exercise of the police power,189 and the fragile nature of coastal property bolsters the case for its use. 190 Some might fear a takings challenge.191 But perversely, permissive land use management may be even more likely to subject governments to liability.192 Considering a swath of common law actions against governments, some authors suggest they are more likely to be successfully sued for engaging in activity or even allowing development that causes or exacerbates damage in future floods than for prohibiting such development.193
COASTAL ZONE MGMT. (2013), http://www.mass.gov/eea/agencies/czm/program-areas/ stormsmart-coasts/stormsmart-communities/stormsmart-mitigate-seawalls.html. 181 See Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 871 & n.13 (Mass. 2005). 182 TOUGIAS, supra note 77, at 34. 183 See id. at 79. 184 See Gove, 831 N.E.2d at 871 & n.13. 185 Id. at 871 n.13. 186 Cf. Dolan v. City of Tigard, 512 U.S. 374, 39293 (1994) (discussing permitting consideration that sought to account for impervious surfaces and the resulting increased storm-water runoff). 187 Christine M. McMillan, Comment, Federal Flood Insurance Policy: Making Matters Worse, 44 HOUS. L. REV. 471, 498 (2007). Gove, 831 N.E.2d at 86869. See supra Part I.A.1. 190 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 103435 (1992) (Kennedy, J., concurring). 191 See id. at 1070 (Stevens, J., dissenting). 192 See Thomas & Medlock, supra note 31, at 16465, 187. 193 Id. (observing common law liability imputed to municipal government for flood damage).
189 188
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Past Government Action (or Inaction) Is Part of the Problem.
Although not the result of express or stated policy, by continuing to provide flood insurance and public infrastructure, the government incentivizes and thereby perpetuates development in flood-prone areas.194 The influence of the FEMA-administered National Flood Insurance Program (NFIP) stands out prominently.195 Numerous authors have criticized the program for subsidizing poor land use decisions and obscuring the true risks of coastal property development. 196 While Congress has rolled out programs to address repeat-recipients of payouts who rebuild, the problem continues.197 The federal government denies that the NFIP incentivizes unwise development, 198 but there are stretches of Massachusetts coastline where dozens of properties have made multiple flood insurance claims.199 Many private insurers simply do not cover floods and there must be a reason.200 The Government Accountability Office described the NFIP program as by design, not actuarially sound.201 While Congress recently passed additional reforms to the NFIP, the program
See, e.g., JUSTIN R. PIDOT, COASTAL DISASTER INSURANCE IN THE ERA OF GLOBAL WARMING: THE CASE FOR RELYING ON THE PRIVATE MARKET 12 (2007), available at http://www.gelpi.org/gelpi/current_research/documents/CoastalDisasterInsuranceReport.pdf; Rose, supra note 165, at 271; Thomas & Medlock, supra note 31, at 161. 195 See supra Part I.B.2. 196 See, e.g., sources cited supra note 194. 197 See Barnhizer, supra note 152, at 30004. 198 See FEMA, MYTHS AND FACTS ABOUT THE NATIONAL FLOOD INSURANCE PROGRAM (2010), available at http://www.fema.gov/library/viewRecord.do?id=3002 (debunking the contention that the flood insurance program encourages coastal development). 199 See StormSmart CoastsMass. Office of Coastal Zone Mgmt., SOUTH SHORE COASTAL HAZARD CHARACTERIZATION ATLAS, Maps 56 (2013), http://www.mass.gov/eea/agencies/ czm/program-areas/stormsmart-coasts/south-shore-hazards-atlas (showing a multitude of properties in the Humarock portion of Scituate with multiple flood insurance claims). Maps must be acquired by contacting the CZM Geologist and requesting the Properties with Multiple Federal Flood Insurance Claims Maps for Regions V & VI. 200 David E. Gerard, Federal Flood Policies: 150 Years of Environmental Mischief , in GOVERNMENT VS. ENVIRONMENT 59, 60 (Donald R. Leal & Roger E. Meiners, eds. 2002). 201 U.S. GOVT ACCOUNTABILITY OFFICE, GAO10106T3, NATIONAL FLOOD INSURANCE PROGRAM: CONTINUED ACTIONS NEEDED TO ADDRESS FINANCIAL & OPERATIONAL ISSUES (2010), available at http://www.gao.gov/assets/130/124468.pdf (reporting repetitive-loss properties represent only 1% of flood insurance policies, but account for 25 30% percent of claims).
194
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continues to subsidize development in at-risk areas.202 Meanwhile, beneficiaries rejoiceDavid Lucas (plaintiff in the Lucas case) sang praise: [It] was the keystone . . . . You have to look at what the program has accomplished: jobs, economic development. Because of the . . . program, we now have tourism and a healthy economy.203 Infrastructure support was also apparent in Lucas; the state constructed a bridge to reach the properties, put in roads, provided sewer and water systems to homes, and placed sand retention devices to mitigate beach erosion.204 For two small lots that regularly flooded, Lucas ultimately received $1.5 million in compensation, prompting one commentator to ask: Who created the value, anyway?205 Some call these artificial property value inflations government givings.206 The state ends up giving in the sense that a successful takings challenge or insurance claim will pay the owner a sum that would not exist but for distortionary government incentives.207 The most obvious giving is literally a gift: disaster relief aid.208 After Hurricane Sandy, even some private gated communities in New York came out of the woodwork looking for aid.209 Overall, a small group of Massachusetts citizens may benefit from givings, but these sums are far outweighed by both federal taxation to fund the NFIP program and subsidize insurance, and also state and local taxation to fund infrastructure and emergency response services.210 The current regulatory system is too costly to maintain. 211
202
Questions about the Biggert-Waters Flood Insurance Reform Act of 2012, FEMA, http://www.fema.gov/media-library-data/20130726-1912-25045-9380/bw12_qa_04_2013.pdf (last visited Oct. 22, 2013).
203 Barnhizer, supra note 152, at 304 (quoting Thomas G. Donlan, The Rights of Owners Dont Include a Federal Subsidy, BARRONS, June 1, 1992, at 10).
See id. Id. at 303; Rose, supra note 165, at 26869, 271 (relating subsequent flood events in the area of the Lucas properties that prompted owners to attempt to install sandbag barriers). 206 See Barnhizer, supra note 152, at 298. 207 See id. at 298, 30004. 208 See Gerard, supra note 200, at 74; Disaster Process & Disaster Aid Programs, FEMA, http://www.fema.gov/disaster-process-disaster-aid-programs (last updated June 13, 2012). 209 See Joseph Berger, Enclaves, Long Gated, Seek to Let in Storm Aid, N.Y. TIMES, Nov. 26, 2012, http://www.nytimes.com/2012/11/27/nyregion/new-york-city-enclaves-long-gated-want -to-let-in-storm-aid.html?pagewanted=all&_r=0. 210 Cf. Barnhizer, supra note 152, at 298, 30004 (suggesting that purchasing at-risk properties would actually be more cost-efficient than the current insurance regime). 211 See supra notes 200210 and accompanying text.
205
204
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IV. The Primary Objections to Limiting Coastal Development Takings Concerns and PoliticsShould Not Stand in the Way of a Statewide Approach to Regulating Floodplain Development. A. The Applicable Precedents Render a Successful Takings Challenge Unlikely. 1. The Impact of Lucas and Modern Takings Jurisprudence
Justice Stevenss dissent in Lucas articulated a fear of many government bodies: the total taking rule created uncertainty in crafting land use regulations with unacceptably high stakes should policymakers incorrectly forecast the constitutionality of their policies. 212 While the chilling effect of Lucas upon land use regulation is difficult to quantify,213 Massachusetts policymakers should not hesitate to enact sweeping reform, as subsequent decisions marginalized the total takings rule.214 Palazzolo and Gove involved landowners seeking to bring factually similar takings claims for regulations enacted prior to the Lucas decision, likely hoping for a similar outcome.215 However, the Supreme Court held that the lower courts in Palazzolo erred by applying only the Lucas total takings test; the Court instructed the lower court on remand to apply the traditional ad hoc test due to the parcels retained value.216 The Court, therefore, seemed to eschew the notion that the categorical takings analysis applies to every coastal regulation.217 Since Lucas, the Supreme Court has yet to find another total taking, and in the process reiterated the narrow circumstance in which the test
212 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1070 & n.6 (1992) (Stevens, J., dissenting) ([C]osts to the government are likely to be substantial and are therefore likely to impede the development of sound land use policy.).
See Thomas & Medlock, supra note 31, at 171. The authors argue that while many local governments are concerned about takings challenges, these concerns grow out of a misreading of recent Supreme Court cases. Id. 214 See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (describing total takings as a narrow category); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 330 (2002).
215 See Palazzolo v. Rhode Island, 533 U.S. 606, 61516 (2001) (bringing total taking claim nine years after Lucas); Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 870 (Mass. 2005) (asserting total taking twelve years after the Lucas decision). 216 217
213
See Palazzolo, 533 U.S. at 632. See id.
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applies.218 The Court in Tahoe-Sierra emphasized that a total taking occurs only where absolutely no productive or economically beneficial use of land is permitted.219 Thus, the Lucas rule would not apply to a 95% diminution in value. 220 Justice Scalia begrudgingly acknowledged as much in the Lucas footnotes.221 Without the finding by the trial court that Lucass lot had zero value (and South Carolinas failure to challenge that finding), the Supreme Court would never have created the total takings test.222 Even the Cato Institute (a political organization that would tout any check upon government regulation)223 recognized the rather limited precedential value of the rule crafted by Justice Scalia, given the peculiar facts and procedural history.224 Assuming for a moment that a total taking occurs, the owner must further demonstrate that the prohibited use of the land was not already barred by background principles of state property and nuisance law.225 Commentators predicted that in practice, state-defined background principles would provide the states with substantial latitude.226 This appears to have proven true: on remand in Palazzolo, the Rhode Island Superior Court held that the potential for nitrogen to leach into the tidal pond adjoining the property after full development would constitute a
218 219
See supra note 214 and accompanying text. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 330 (2002) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992)).
220 Id. In Lucas, the Court specifically did not address the factual finding that the Lucas property had no economic value because respondent South Carolina Coastal Council failed to challenge it in its brief. Lucas v. S.C. Coastal Council, 505 U.S. at 1020 n.9. 221 See Lucas, 505 U.S. at 1019 n.8 (It is true that in at least some cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in full.). Justice Scalia accepted leaving an individual with five cents on the dollar while a similarly affected neighbor gets his dollar back as a reality of creating all or nothing categorical rules. Id. 222 See supra note 220. 223 See About Cato, CATO INSTITUTE, http://www.cato.org/about (last visited Oct. 22, 2013). The Cato Institute suggests that the current regulatory regime is a perverted system wherein the government is simultaneously the biggest and worst polluter in America and the primary actor in the effort to mitigate environmental harms. Natural Resources, CATO INSTITUTE, http://www.cato.org/research/natural-resources (last visited Oct. 22, 2013). 224 See William Niskanen, A Line in the Sand?, REGULATION, Summer 1992, at 9, http://www.cato.org/sites/cato.org/files/serials/files/regulation/1992/7/v15n3-2.pdf. The piece concludes by lamenting: Nino, we thought we knew you. Id. at 11.
See Lucas, 505 U.S. at 1029. See Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1438 (1993) [hereinafter Understanding Lucas].
226
225
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public nuisance under state law.227 Even had the regulation diminished all economic value from the Palazzolo property, finding a public nuisance precluded a successful takings claim.228 Not surprisingly, one study found owners prevail in less than 3% of total takings actions.229 Therefore, a regulatory takings claimant will, in most cases, be forced to litigate under the ad hoc framework to prove the private harm justifies compensation despite public benefit. 230 The same study above found that property owners prevail less than 10% of the time when courts apply the ad hoc test.231 2. Takings in Massachusetts Today
The current state of post-Lucas takings jurisprudence in Massachusetts echoes the above, and perhaps goes even further: Chathams coastal regulation strictly prohibiting development in a floodplain was firmly held constitutional in Gove.232 Since Lucas, a number of regulatory takings cases have come before the Massachusetts Supreme Judicial Court and Appeals Court, and in each instance, the courts upheld the government action.233 Though the restrictions may have precluded the homeowners chosen or preferred use, in each case, the property retained some value.234 The rationale for upholding the government action can be traced to the historical strength of the police power. Many of the Massachusetts courts noted that even if the restriction deprived the owners of value, the takings doctrine was never intended to protect maximized property value, particularly property
227 See Palazzolo v. State, No. WM 88 0297, 2005 WL 1645974, at *23, *15 (R.I. Super. Ct. July 5, 2005). 228 Id. at *14. 229 See Hubbard, supra note 115, at 142. 230 See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 53839 (2005). 231 See Hubbard, supra note 115, at 141. The study found owners prevail in 13.4% of cases where the court addresses the merits, but only 9.8% of cases overall. Id. 232 See Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 87275 (Mass. 2005). 233 See, e.g., Blair v. Dept of Conservation & Recreation, 932 N.E.2d 267, 277 (Mass. 2010); Gove, 831 N.E.2d at 875; Daddario v. Cape Cod Commn, 681 N.E.2d 833, 83738 (Mass. 1997); Leonard v. Town of Brimfield, 666 N.E.2d 1300, 1304 (Mass. 1996); Collins v. Historic Dist. Commn of Carver, 897 N.E.2d 1281, 1285 (Mass. App. Ct. 2008); Chiancola v. Bd. of Appeals of Rockport, 843 N.E.2d 108, 10910 (Mass. App. Ct. 2006); Zanghi v. Bd. of Appeals of Bedford, 807 N.E.2d 221, 227 (Mass. App. Ct. 2004); FIC Homes of Blackstone, Inc. v. Conservation Commn of Blackstone, 673 N.E.2d 61, 71 (Mass. App. Ct. 1996). 234
See, e.g., Blair, 932 N.E.2d at 27677; Gove, 831 N.E.2d at 87475.
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situated in a risky floodplain.235 Massachusetts developers with plans to build in coastal areas affected by new legislation may not receive a sympathetic audience:
[A] developer with designs on improving its property consistent with an existing zoning framework had best get its shovel into the ground. That the zoning change prevents the owner from exploiting the investment potential of the property to the fullest does not make it a taking.236
B. Disaster-Resistant Development Is in the Public Good and Politically Feasible 1. Lucas and Competing Political Visions of Property
The baseline justification for statutory reform proposed by this Note 237 is the states power to regulate in a manner that promotes the health, safety, and welfare of the community. 238 The Lucas dissenters pointed out that the state acted within its police power:
Long ago it was recognized that all property in this country is held under the implied obligation that the owners use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.239
Justice Scalia acknowledged the police power,240 but peeling back the various legislative justifications for the BMA,241 targeted the environmental agenda: [B]y requiring land to be left substantially in its natural state[,] [regulations that restrict development] carry with them a heightened risk that private property is being pressed into some form of public service
See Gove, 831 N.E.2d at 874 ([E]ven if we assume that residential development is the most valuable potential use of lot 93, Gove did not prove that the prohibition against a house on lot 93 caused her a loss outside the range of normal fluctuation in the value of coastal property.); see also Tpk. Realty Co. v. Town of Dedham, 284 N.E.2d 891, 900 (Mass. 1972).
236
235
W.R. Grace & Co. v. Cambridge City Council, 779 N.E.2d 141, 155 (Mass. App. Ct.
2002). See infra Part V. See supra Part I.A.1 (discussing the development and rationale underlying the police power). 239 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 103940 (1992) (Blackmun, J., dissenting) (quoting Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470, 49092 (1987)). 240 Id. at 1027 (majority opinion) ([T]he property owner nece ssarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers . . . .).
238 241 237
The statute at issue in the Lucas case.
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under the guise of mitigating serious public harm.242 Lucas therefore grapples with competing conceptualizations of property: on one hand, as part of (and limited by) an interrelated system; on the other, in a vacuum in which each individual has certain property rights that override any broader environmental concerns. 243 If one characterizes environmental considerations as community concernswhich they are244these approaches are not mutually exclusive; regulatory takings law as a whole reflects the difficult balance of individual rights against the interests of the broader community.245 The police power commands that despite the reverence of private property rights in society, individuals cannot use their land for any and all usesparticularly those harmful to neighbors.246 Justice Scalia gave this principle a nod with his nuisance exception, 247 but as Justice Blackmun retorted, the exception as described is true to neither the common law definition of nuisance nor the Courts own precedents upholding regulations upon activities that do not rise to the level of a nuisance.248 It is certainly important to note, however, that the trial court decision on remand in Palazzolo demonstrates that ecological and environmental motivations can meet the background principle exception.249
Lucas, 505 U.S. at 1018. See Understanding Lucas, supra note 226, at 1438 & n.34. 244 See James L. Huffman, Land Ownership and Environmental Regulation, 25 ECOLOGY L.Q. 591, 595 (1999) (considering the theoretical underpinnings of community benefits from environmental regulation).
243 245 See, e.g., Charles H. Clarke, Regulatory Takings, Private Property and Public Benefits, 17 WHITTIER L. REV. 21, 2527 (1995) (discussing the tenuous balance between permitted restriction upon individuals and unconstitutional coercion by government); Raymond R. Coletta, Reciprocity of Advantage and Regulatory Takings: Toward a New Theory of Takings Jurisprudence, 40 AM. U. L. REV. 297, 29799 (1990) (describing the tense balance between the governments exercise of the police power and private property rights resulting in confusing jurisprudence). 246 See, e.g., Block v. Hirsh, 256 U.S. 135, 155 (1921) ([T]he notion that [property rights] are exempt from the legislative modification . . . is contradicted . . . by that of the police power in its proper sense, under which property rights may be cut down, and to that extent taken, without pay.).
242
See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 102930 (1992). See id. at 105255 & n.17 (Blackmun, J., dissenting) (citing various cases that illustrate that the Court historically deferred to state interpretations of what constitutes a public harm and the broad nature of common law nuisance).
248 249 See Palazzolo v. State, No. WM 88-0297, 2005 WL 1645974, at *15 (R.I. Super. Ct. July 5, 2005) (holding the potential for nitrogen to leech into the adjacent tidal pond as a result of
247
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It seemed environmentalism in the BMA offended Scalia most. 250 For Massachusetts to pass an act on firm constitutional ground, it must be clear that measures do not enlist private property for public aesthetic or ecological purposes, but address a real and present danger posed by major storm events.251 Given the limited applicability of the Lucas rule, Massachusetts legislators, with adequate public safety justification, should succeed in regulating floodplain development under the police power.252 This becomes even clearer when one considers [c]oastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development.253 There is reciprocity of advantagea distributive benefit greater than the individualized burden to be gained through sustainable land use practices and disaster mitigation. 254 2. The Public Pitch: Smart Growth and Sustainability
Political leadership will require two primary elementsfirst, educating the public about the risks posed by floodplain development; and second, motivating leaders across the state to collaborate to address these issues in a manner that protects both private property and public welfare. 255 Central to any enactment is how legislation is explained, justified, and branded.256 Branding is not to be underestimated: for example, semantics have played an influential and divisive role in public discussions about climate change.257 Importantly, reforms are not to be put forth as antidevelopment, but neutral on development and primarily focused upon
development constituted a public nuisance under Rhode Island state law). See Lucas, 505 U.S. at 101819. Cf. Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 871 & n.13 (Mass. 2005). 252 See supra Part IV.A (discussing post-Lucas Supreme Court and Massachusetts decisions). 253 Lucas, 505 U.S. at 1035 (Kennedy, J., concurring) (criticizing the nuisance qualification to the majoritys total-taking analysis).
251 250
See Coletta, supra note 245, at 322 (discussing land use and the benefits justifying comprehensive zoning). 255 See METRO. AREA PLANNING COUNCIL, SOUTH SHORE COASTAL HAZARDS ADAPTATION STUDY 4 (2011), available at http://www.mapc.org/sites/default/files/FINAL_South_Shore_ Coastal_Adaptation_Planning_Report_12-31-11_sm.pdf [hereinafter SOUTH SHORE HAZARDS]. 256 See id; infra notes 25758. 257 See, e.g., Jen Alic, Climate Change: Brand or Be Branded , OILPRICE.COM (June 6, 2012, 10:11 PM), http://oilprice.com/The-Environment/Global-Warming/Climate-Change-Brand-or-BeBranded.html.
254
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those that would be adversely affected by unwise land use decisions. 258 In this regard, labels such as smart growth, disaster-resistant development, and sustainability are key to the campaign.259 While there may be incidental environmental benefits, the primary emphasis must be upon use of the police power to prevent collateral hazards like those caused by diverting flood waters and debris dislodged in major storm and flood events.260 No doubt, a proposal seeking to curtail residential land use is complicated by emotional and political considerations.261 People will not easily surrender property rightsthe thought of abandoning the place where they built their lives, or hoped to do so, is challenging.262 And the roots of the political dilemma run deep: the Founding Fathers were influenced by those who elevated property as a fundamental right. 263 Among economic and financial interests, real property is the most tangible264 and often the most controversial in matters of government
258 See JON A. KUSLER & EDWARD A. THOMAS, NO ADVERSE IMPACT AND THE COURTS: PROTECTING THE PROPERTY RIGHTS OF ALL 5 (2007), available at http://www.floods.org/PDF/ ASFPM_NAI_Legal_Paper_1107.pdf. 259 See generally Lisa Grow Sun, Smart Growth in Dumb Places: Sustainability, Disaster, and the Future of the American City, 2011 B.Y.U. L. REV. 2157, 215762 (2011) (explaining the importance of branding in environmental-regulation discourse); FEMA, BUILDING A DISASTER-RESISTANT UNIVERSITY (2003), available at http://mitigation.eeri.org/files/FMEA443.disaster.resist.univ.pdf (exemplifying the power of well-used semantics). 260 See supra Part III.B.1 (discussing policy justifications for limiting development). In this regard, the statute would be less susceptible to criticism as environmental. Cf. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1018 (1992). 261 See Tom Johnson, Whats the Going Rate for a Dune on the Jersey Shore? , NJ SPOTLIGHT (May 9, 2013), http://www.njspotlight.com/stories/13/05/08/what-s-the-going-price-for-a-dune
-on-the-jersey-shore/. 262 See Domenick Rafter, Cuomo Suggests Hurricane Sandy Victims Move from Coast, QUEENS CHRONICLE (Jan. 31, 2013, 10:30 AM), http://www.qchron.com/editions/south/cuomosuggests-hurricane-sandy-victims-move-from-coast/article_dde303ff-0d89-5df4-a37a35bbc749c589.html. Compare JOHN LOCKE, SECOND TREATISE ON GOVERNMENT vii, 46 (C.B. Macpherson, ed. 1980) (Man being born . . . with a title to perfect freedom . . . hath by nature a power . . . to preserve his property, that is, his life, liberty, and estate.) (emphasis added), with THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), available at http://www.ushistory.org/ declaration/document/index.htm ([Men] are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.) (emphasis added). 264 See Block v. Hirsh, 256 U.S. 135, 155 (1921) (The fact that tangible property is also visible tends to give rigidity to our conception of our rights in it that we do not attach to others less concretely clothed.).
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regulation.265 The reality is that despite the attachment to coastal land, it is not ordinary property.266 Coastal land lacks the permanence of inland, dry propertya single storm can bring eroding flood waters that fundamentally alter its composition, even threaten its very existence. 267 Property situated in areas historically left undeveloped (such as wetlands or barrier beaches) begs the question why anyone claims ownership let alone ownership with development rightsin the first place.268 That aside, recognizing the truly fleeting value of coastal land is the first step towards more sustainable practices.269 Making a case for reform to the public at large does not dispose of the issue, and ramming through a complete moratorium could be viewed as overreaching and spark opposition.270 Buyouts may be necessary under certain circumstances271an unseemly proposition in tough fiscal times.272 New York Governor Andrew Cuomo is currently putting together such a plan as part of the post-Sandy land use reform effort, but with federal aid to the tune of $400 million.273 Significantly, the reform underway in New York is an example of a reactive rather than a preventive approach to the issue.274 Government actors
See Rose, supra note 165, at 238. See Barnhizer, supra note 152, at 313. 267 Id. ([F]loodplains . . . may disappear under the property owners feet at any time.). 268 See Understanding Lucas, supra note 226, at 1449 (Not only are their land uses restricted for historically unrecognized purposes, but also they own a type of land that, by todays standards, should never have been subject to private ownership at all.). 269 See FEMA, MITIGATION AND INSURANCE STRATEGIC ACTION PLAN 20122014, at 2431 (Sept. 2011), available at http://www.fema.gov/library/viewRecord.do?fromSearch=from
266
265
search&id=4903 (download pdf file); Barnhizer, supra note 152, at 31213. 270 See Barnhizer, supra note 152, at 33739 (discussing the disadvantages of land use controls in floodplain areas). See generally NATL WILDLIFE FEDN, HIGHER GROUND: A REPORT ON VOLUNTARY BUYOUTS IN THE NATIONS FLOODPLAINS 120 (July 1998), available at http://www.mitigation leadership.com/hrmlf/pdf/Higher_Ground_Report_Voluntary_Property_Buyouts_National_Fl oodplains.pdf. 272 See MASSBUDGET, A PREVIEW OF THE FISCAL YEAR 2014 BUDGET 1 (2013), available at http://www.massbudget.org/reports/pdf/budget_preview_2014.pdf (noting shortfall).
273 See NYS 2100 COMMISSION, supra note 153, at 140; Thomas Kaplan, Cuomo Seeking Home Buyouts in Flood Zones, N.Y. TIMES (Feb. 3, 2013), http://www.nytimes.com/2013/02/04/ 271
nyregion/cuomo-seeking-home-buyouts-in-flood-zones.html?pagewanted=all. 274 See NYS 2100 COMMISSION, supra note 153, at 7 (identifying Hurricane Sandy as a dramatic event that made the states vulnerability painfully clear).
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often fail to implement substantive floodplain restrictions until after the development that creates the policy problem. 275 Thus, acting sooner rather than later is imperative. 276 As time goes on and more local boards permit floodplain construction, the task becomes more costly and politically daunting.277 C. The Need for a Statewide Enactment and the Practical Considerations Involved None of these issues should be news to legislators. 278 Floodplain policy and preparedness for the increased threats of major storm events has been the subject of both state and local reports in Massachusetts. 279 The Massachusetts Office of Coastal Zone Management (CZM) rolled out a program called StormSmart Coasts, which seeks to help communities prepare for and protect themselves from coastal storms and flooding now and under higher sea levels.280 CZM clearly recognizes the risks, but merely advises local governments on hazard mitigation. 281 Some experts have called for authorities to utilize land use controls more actively but overlooked the inevitable282: local governments tend to produce fragmented, conflicting policies.283 CZM provides tools and resources to those that seek them, but decisions ultimately rest with the community.284 While some communities have collaborated to address coastal land use strategies (with the encouragement of CZM), the concept still appears to be novel.285
See Barnhizer, supra note 152, at 33839. See id. 277 See id. 278 See, e.g., POLICY GUIDE, supra note 72, at 2528. 279 See, e.g., id.; SOUTH SHORE HAZARDS, supra note 255. 280 StormSmart CoastsHelping Communities and Homeowners with Coastal Erosion, Flooding, and Storm Damage, MASS. OFF. OF COASTAL ZONE MGMT., http://www.mass.gov/eea/
276 275
agencies/czm/program-areas/stormsmart-coasts/ (last visited Oct. 22, 2013). 281 Id. 282 See Salkin, supra note 24, at 1016970. 283 See supra Part I.B.3 (illustrating the inconsistency of floodplain management in Massachusetts communities). 284 StormSmart CoastsStorm Smart Communities, MASS. EXEC. OFFICE OF ENERGY AND ENVTL. AFFAIRS, http://www.mass.gov/eea/agencies/czm/program-areas/stormsmart-coasts/ stormsmart-communities/ (last visited Oct. 22, 2013). 285 See SOUTH SHORE HAZARDS, supra note 255 (characterizing a collaborative hazard impact study commissioned by the south shore communities of Scituate, Marshfield, and Duxbury as a first step).
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The main obstacle to implementing meaningful reform is the current zoning scheme in Massachusetts.286 Storms and coastal flooding are an exceptional case, posing a unique threat to public safety. 287 The justifications that would otherwise warrant local control tailoring policy to meet the needs of the particular communitysimply are not present in floodplain planning.288 Floodplains themselves often span several municipalities.289 Their multi-jurisdictional nature bolsters the need to standardize policies to both ensure comprehensive regulation and minimize the chance that conflicting strategies counteract one another.290 That a developer could build in a floodplain in one community, but not in the next town over within the same floodplain, is intolerable from a policy standpoint.291 There are a number of explanations (most typical of local government criticisms) that prevent implementation of a uniform, statewide approach. The primary culprits are likely taxes and politics.292 Local governments view development of commercial establishments and large residences as an opportunity to gain the short-term benefit of increased property tax revenues, but discount the potential for a storm to cause damage that, on the whole, eclipses those benefits.293 Statewide legislation would remove the temptation, in tough fiscal times, to push through unwise projects. 294 Politics is harder to account for, but suffice it to say local government bodies have a reputation for a peculiar brand of decision-making.295 A neutral statewide approach, while not completely devoid of politics, would remove some risk of capture and cronyism. 296
See supra Part I.B.1 (discussing the substantial delegation of authority in land use matters to local government). 287 See Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 871 & n.13 (Mass. 2005). 288 See infra notes 289291. 289 See Barnhizer, supra note 152, at 339. 290 See id. 291 See NYS 2100 COMMISSION, supra note 153, at 139 (discussing coordinating land use efforts regionally to prevent developers from venue-shopping projects in the least strict municipalities). See BABCOCK, supra note 55, at 30; Rose, supra note 165, at 24647. See Regina McMahon, Comment, The Lucas Dissenters Saw Katrina Coming: Why Environmental Regulation of Coastal Development Should Not Be Categorized as a Taking , 15 PENN ST. ENVTL. L. REV. 373, 392 (2007).
293 292
286
Id. See generally BABCOCK, supra note 55, at 2030. 296 See Rose, supra note 165, at 24647 ([P]resumably if decision making were simply kicked upstairs as far as the state level better decisions would result.).
295
294
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Local governments may not be especially enthusiastic at the proposition,297 but the exceptional nature of the issue, and reassurances that this not a sign of further land use centralization, may smooth over political opposition.298 Legal resistance is unlikely: as a matter of law, the legislature has the express constitutional and statutory powers to enact measures that override local laws that conflict or undermine state priorities in flood regulation.299 The support of Massachusetts citizens and local governments will require education and engagement efforts to make clear that the status quo is costly, failure to act could be costlier, and a proactive rather than reactive approach can avoid a painful wake-up call down the road. 300 V. A Vision for Reform While the level of detail required for broad reform is beyond the scope of this Note, some basic recommendations can be made. 301 This is intended as a starting point to address a challenging but crucial public policy issue facing Massachusetts.302 A. Legislation A statute governing floodplains on a statewide level would set out uniform standards for flood zone boundaries with procedures governing proposed development that apply consistently.303 In this regard, the accuracy of floodplain maps is paramount. 304 High-quality digital mapping is essential to understanding and planning for the risks of development in a given area.305 As shown by the Doherty case, towns that have not
See Barnhizer, supra note 152, at 339 ([L]ocal governments historically have zealously guarded local control over land use.). 298 See RAYMOND J. BURBY & PETER J. MAY, MAKING GOVERNMENTS PLAN: STATE EXPERIMENTS IN MANAGING LAND USE 1 (1997). 299 See MASS. CONST. pt. 2, ch. 1, 1, art. IV; MASS. GEN. LAWS ch. 40A, 3 (2012). 300 Cf. NYS 2100 COMMISSION, supra note 153, at 7, 128 (regretting not implementing reform sooner and noting that changing wetland maps would impact development opportunities and tax revenue, requiring policymakers to engage and educate the public). See infra Part V. See infra Part V. 303 Cf. Floodplain Management Program History , MINNESOTA DEPT. OF NATURAL RESOURCES (2013), http://www.dnr.state.mn.us/waters/watermgmt_section/floodplain/history.html. 304 See Kusler, supra note 163, at 30, 34 (citing accurate maps as crucial to preventing future problems).
302 305 301
297
See THE NATL ACADS., MAPPING THE ZONE: IMPROVING FLOOD MAP ACCURACY 56
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overhauled and updated their maps could face reversal of a zoning board decision, regardless of the evidence that a property floods and poses a hazard risk for future flooding.306 The state need not undertake a mapping project, as FEMA flood maps are already widely available with data used in the flood insurance program.307 The current FEMA 100-year storm floodplain should be a minimal starting point.308 It should be noted that FEMA data is not always accurate,309 and New York is currently working with the agency to update maps that are several decades old and resetting statewide floodplain standards to account for actual risks. 310 Massachusetts, as a close neighbor, should also engage FEMA in such an effort. 311 Any proposed development within the hundred-year floodplain, including reconstructions following a major storm event, would require a variance: a showing of a special hardship justifying an exception to the limitations upon development. 312 In critical high-risk areas of the floodplain, residential development would be prohibited without exception.313 Importantly, some non-residential uses should be permitted to preclude claims that the land has no value. 314 The statute could be modeled
(2009), available at http://dels.nas.edu/resources/static-assets/materials-based-on-reports/ reports-in-brief/improving_flood_maps_final.pdf [hereinafter MAP ACCURACY]. 306 See Doherty v. Planning Bd. of Scituate, No. 11-P-1198, 2012 WL 5990303, at *24 (Mass. App. Ct. Dec. 3, 2012).
307 See Flood Hazard Mapping, MASS. OFF. OF PUB. SAFETY AND SEC., http://www.mass. gov/eopss/agencies/mema/hazard-mitigation/floodplain-mgmt/flood-hazard-mapping.html (last visited Oct. 22, 2013) [hereinafter Flood Mapping]. 308 See, e.g., QUINCY, MASS., ORDINANCE 8.1.2 (2011), available at http://www.quincyma. gov/cityofquincy_content/documents/forms/zoning_ordinance_document.pdf (establishing a floodplain overlay district by incorporating the boundaries of the FEMA 100-year floodplain map designation).
See MAP ACCURACY, supra note 305 (noting that while FEMA mapped 92% of the continental U.S. as of 2009, only 21% of those maps meet FEMAs current quality standards). 310 See NYS 2100 COMMISSION, supra note 153, at 128. Namely, the revised floodplain maps will incorporate a margin of safety to prevent a false sense of security, acknowledging that there is inevitable uncertainty that goes into projections. Id. at 137.
311 Cf. id. at 128 (asserting that New York is currently in the process of updating its floodplain maps).
309
See BOBROWSKI, supra note 16, at 259 (A variance represents a waiver of rules adopted by the local legislative body.). The author quotes a legislative report suggesting variances create an administrative escape hatch to guard against constitutional challenges. Id.
313 See Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865, 86869 (2005). The measure could largely mirror the ordinance at issue in Gove. Id. 314
312
See CAPE FLOODPLAIN, supra note 58, at 13.
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after similar bylaws adopted by Chatham and Oak Bluffs coastal communities put forth as models for coastal hazard mitigation. 315 B. Funding This proposal will not be an unfunded mandate upon local governments.316 Noted above, FEMA maps are likely the most up-to-date and accurate data available; incorporating them by reference into legislation would not pose a significant fiscal burden. 317 Additionally, incorporating basic sensible principles about floodplain development will save money over time.318 In fact, such a measure may bring in additional federal funds either directly from FEMA or through disaster-mitigation programs like the DMA.319 C. Administration and Implementation The Massachusetts legislature has express constitutional and statutory authority to override conflicting local zoning enactments, specifically floodplain regulations.320 Thus, a statewide statute would effectively displace the current regime.321 This would not be a total regulatory overhaul, as some communities already embrace these basic principles. 322 The CZM, as the state agency tasked with stewardship of coastal land, is an obvious choice to work with local communities and conservation commissions in administering the act.323 CZM already works closely with local government324 and could serve as a neutral regulatory body to oversee
Oak Bluffs Passes Forward-Thinking Floodplain Regulation, STORMSMART COASTS (Nov. 2, 2010), http://ma.stormsmart.org/2010/11/02/oak-bluffs-passes-forward-thinking-floodplain -regulation/. 316 Cf. Salkin, supra note 24, at 10169 (discussing federal, state, and local collaboration and the availability of funds). See Flood Mapping, supra note 307. Cf. NYS 2100 COMMISSION, supra note 153, at 139 (discussing the cost-effectiveness of land use measures proposed in New York).
318 317
315
Salkin, supra note 24, at 10169. See, e.g., MASS. CONST. amend. art. II, 8; MASS. GEN. LAWS ch. 40A, 3 (2012). 321 See MASS. GEN. LAWS ch. 40A, 3 (2012); supra Part I.B.3 (discussing disparate local zoning regulations over floodplains). 322 See supra Part I.B.3. 323 See Massachusetts Office of Coastal Zone Management, MASS.GOV (2013), http://www.mass. gov/eea/agencies/czm/. 324 See About the Massachusetts Coastal Zone Management Program, MASS.GOV (2013), http://www.mass.gov/eea/agencies/czm/about-czm/.
320
319
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planning decisions and variance applications in designated floodplains. 325 The arrangement would be similar to the overlapping responsibilities for implementing the Wetlands Act.326 Variance procedures will allow land owners the opportunity for a hearing to examine the flood risks of a particular site and propose possible alternatives. 327
CONCLUSION
Now is the time for Massachusetts to prepare for the next storm. Without necessarily sounding the alarm bells, there are many clear and sensible reasons to remedy the defects in the state s coastal land use policy.328 Permitting unwise floodplain development costs tens of billions of dollars in property damage, death and injury, and imposes substantial burdens on those directly and indirectly impacted. 329 With a scattered and disconnected approach, the state fails to account for the far-reaching nature of floodplains and the mutual responsibility that Massachusetts citizens share to protect residents and manage our valuable coastal resources. 330 The very real threat of a major storm event justifies consolidating land use powers and cooperation between communities.331 The state must take steps to reform now, before the regulatory gaps are exposedlook no further than post-Sandy New York to see the flaws inherent in a reactive rather than preventive approach.332 Let us hope that Massachusetts can choose the wise course.
325 Cf. Fafard v. Conservation Commn of Barnstable, 733 N.E.2d 66, 7175 (Mass. 2000) (examining the parallel and complimentary permitting powers of the DEP and local authorities). 326 See id. (examining the parallel and complimentary permitting powers of the DEP and local authorities). 327 See KUSLER, supra note 163, at iii. 328 See supra Part III. 329 See supra Part III.B.1. 330 See supra Part III.B.3. 331 See supra Part III. 332 See NYS 2100 COMMISSION, supra note 153, at 7, 128.

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101_RICHARD BOOK 1 FINAL_ON REMAND.

New England Law Review

Avoiding Unintended House Boats

New England Law Review

Avoiding Unintended House Boats

benefit to the broader community in mind. 15 2. Localized Land Use Policy

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Avoiding Unintended House Boats

See supra note 42 and accompanying text.

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Federal Influence Down to Local Government

Avoiding Unintended House Boats

Local Enactments in Massachusetts: Significant Variation

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Baker, supra note 85. Id.

Avoiding Unintended House Boats

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New England Law Review

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HURRICANE SANDY REBUILDING TASK FORCE, HURRICANE SANDY REBUILDING STRATEGY

New England Law Review

See StormSmart CommunitiesMaintaining Seawalls and Other Structures, MASS. OFF. OF

Avoiding Unintended House Boats

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Past Government Action (or Inaction) Is Part of the Problem.

Avoiding Unintended House Boats

New England Law Review

See Palazzolo, 533 U.S. at 632. See id.

Avoiding Unintended House Boats

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The statute at issue in the Lucas case.

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Avoiding Unintended House Boats

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Avoiding Unintended House Boats

New England Law Review

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Avoiding Unintended House Boats

See CAPE FLOODPLAIN, supra note 58, at 13.

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Avoiding Unintended House Boats

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