Unit 9: Legal Issues

Legal Issues Video Time length 11:13

1.2 Objectives At the end of this unit, you should be able to:  Identify some legal precedents that support and encourage floodplain management.  Describe the importance of properly enacting your ordinances.  Identify sources of legal authority, advice, and information about local floodplain management issues.

1.3 Legal Basis of the NFIP  National Flood Insurance Act of 1968 as amended (42 U.S.C ).  NFIP regulations are found in the 44 Code of Federal Regulations (CFR) Parts  Participation in the NFIP is voluntary for States and communities.

1.4 State laws:  Provide communities with the authorities necessary to adopt and enforce floodplain management ordinances;  Usually establish procedural and other requirements that communities must follow in adopting and implementing land use ordinances; Legal Basis for Local Floodplain Management Regulations

1.5 Legal Basis for Local Floodplain Management Regulations (Continued) State laws:  Often specify administrative procedures that communities must include in their ordinances and then follow when they are administered, and;  State floodplain management laws and regulations may establish additional requirements that communities must include in their floodplain management ordinances.

1.6 State Approaches: Massachusetts Floodplain Management Authorities  Massachusetts Zoning Act  Massachusetts Uniform Building Code  Massachusetts Wetlands Regulations  Different requirements for cities and towns

State Approaches: Mississippi Floodplain Management Authorities  There is no state law or executive order concerning floodplain management.  All responsibility is delegated to the local communities.

Legal Basis for Local Floodplain Management Regulations (continued) Other considerations:  Communities that fail to properly regulate their special flood hazard areas may face lawsuits;  Failure to adopt and enforce a compliant ordinance is grounds for suspension from the NFIP; and,  Adoption and enforcement of an ordinance that exceeds minimum NFIP standards may be credited by the NFIP’s Community Rating System (CRS).

State provided model Flood Damage Prevention Ordinance, last updated 2 / 28 / Provides guidance in complying with the minimum participating criteria of the NFIP. Community Flood Damage Prevention Ordinance

Community Floodplain Regulations  Legally enforceable;  Applied uniformly;  Take precedence over any less restrictive conflicting laws, ordinances, or codes; and,  Address requirements of Section 60.3 of 44 CFR.

Local Floodplain Management Ordinances  Must be properly enacted;  Must include provisions for:  Effective enforcement, including penalties for violations.  Procedures for variances and appeals;

Local Floodplain Management Ordinances (Continued)  Due process (for example, an Appeals Board;.  Nondiscrimination, i.e., uniform application, and;  Adequate reference to flood insurance study data and applicable flood hazard maps.

When Administering Your Ordinance  Follow the rules—stick to the procedural requirements in the ordinance.  Uniformly apply your ordinance—be fair and consistent.  Be confident—ordinances that meet or exceed NFIP minimum standards are almost invariably upheld by the courts.

1.14 When Drafting Your Ordinance  Involve your county / municipal attorney.  Be fair – Do not use your ordinance to try to acquire property at lower than market value.  Clearly relate ordinance requirements to preventing flood damages to or by the development.  Consider the economic impacts of your regulations.  You may want to use techniques such as transfer of development rights for restrictive ordinances where land is valuable.

Important Points: NFIP Minimum Floodplain Management Requirements  The NFIP requirements have only two basic purposes:  Protecting buildings from flood damages, and  Preventing the actions of one property owner from increasing flood damages to adjoining property owners.  Most NFIP requirements are performance standards;

Important Points: NFIP Minimum Floodplain Management Requirements (Continued) NFIP Requirements:  May have the effect of increasing the cost of a development or limiting the size of a development;  Seldom will prevent all use of a property, and;  Ordinances that meet NFIP minimum requirements have not been found to be a “taking.”

1.17 What Is a “Taking?” Fifth Amendment to the U.S. Constitution provides that: Private property (shall not) be taken for public use without just compensation.

1.18 Potential Community Liability for Increased Flood Damages  Community was aware of a flood problem, but took no action;  Failure to account for the flood problem when taking an action;  Community allows improper development that increases the flood hazards for others;  Community undertakes an action that increases the flood hazard;

1.19 Potential Community Liability for Increased Flood Damages (Continued)  Community owns or operates a flood protection system that is poorly designed, constructed, or maintained;  Community fails to warn citizens of a known flood hazard, and;  Community inconsistently administers its floodplain management regulations.

1.20  Construction of a road that blocks drainage and increases flooding;  Storm water system increases flood flows;  Structure blocks a watercourse and increases flood heights;  Bridge built without adequate opening to pass floodwaters; Examples Where Governments May Be Held Liable

1.21  Grading land increases runoff or diverts flood flows;  Flood control structure fails or causes increased flooding to adjoining properties;  Filling of a wetland increases flood flows and causes increased flood damage;  Issuing permits for a development that causes increased flood damage to a third party; Examples Where Governments May Be Held Liable (Continued)

 Issuing Variances that are inconsistent with the minimum requirements of the NFIP;  Improper plans review or site inspections that allows construction below the BFE; and,  Improper uses allowed below the Base Flood Elevation. Examples Where Governments Can Be Held Liable (Continued)

Variance Liability  Insufficient reasons for granting a variance to the Flood Damage Prevention Ordinance;  Convenience of property owner;  Financial considerations;  Hardships created by owner’s own action; and,  Circumstances of owner, not the land.

Five page variance handout on the MEMA FPM webpage.

Community Liability  State and local governments are more likely to be successfully sued for permitting development that causes increased flooding than they are for prohibiting such development.

1.26 Other Actions Your Community Should Take  Develop/maintain a Hazard Mitigation Plan.  Comply with other Federal, State, and local requirements.  Set an example by your own actions—Comply with your ordinance.

1.27 Legal Advice and Information  Your county or municipal attorney is usually the best source of legal advice and can help resolve legal issues that may arise in your jurisdiction.  Your attorney may seek:  The guidance of the State Attorney General’s Office;  Suggestions from State bar associations;  Knowledgeable sources in leagues of cities, towns, or counties.

1.28 Legal Advice and Information (Continued) ASFPM publications at provide background information that can help your attorney. For example:  Legal Questions on Floodplain Regulation in the Courts  No Adverse Impact Floodplain Management and the Courts (November 2005 edition or later)  Legal Questions: Government Liability and No Adverse Impact Floodplain Management

1.29

1.30 Activity: Legal Problems  The instructor will assign one of the legal challenges to each table in the class.  Decide upon the action that the jurisdiction should take or the legal grounds that the jurisdiction can cite to address the situation.  Appoint a spokesperson to present the group’s recommendations.

1.31 Unit Summary  Legal Issues video  Community zoning powers  More restrictive local ordinance  Taking  Community Liability  NAI legal issues publications

Which is true? 1.The International Ballet Competition is only held in Moscow, Russia; Helsinki, Finland; Paris, France; Varna, Bulgaria & Jackson, MS. 2.The world’s first human lung and heart transplants were performed at the UMMC. 3.Both are true Mississippi Trivia Number 3 is correct.

Questions and Possibly Answers…