Fort Collins Government Best Practices Leadership Link

Natural Hazard Mitigation Associationwww.nhma.info

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Fort CollinsGovernment Best Practices

Leadership Link

November 18, 2010Edward A. Thomas, Esq.

[email protected]

mailto:[email protected]


Good Day! I appear today with thoughts from: The Natural Hazard Mitigation Association The Natural Hazard Center of the University of Colorado The Association of State Floodplain Managers

This is not and cannot be legal adviceThis is a statement of general principles of ethics, law and policy

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Fort Collins You folks have done many floodplain management and

water resources activities which are a national model Higher Regulations Class 4 Community Rating System Community! Clearly you are trying to enhance community safety,

sustainability and wellness If these world class accomplishments were available in

writing they could be used, much as the Urban Drainage and Flood Control District materials are now used nationally and internationally

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Why do we have government?

Any ideas?

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What Is the Proper Role of Government Employees Concerning Disasters?

Pre-disaster During disasters Following disasters

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Fundamental Consideration

Allocation of responsibility for safe and sustainable development:

Government Business and Industry Individuals

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Key Themes We Need To Think Broadly To Solve Our Serious Problems

We Must Stop Making Things Worse

Right Now We Have A System Which Rewards Dangerous Behavior

We Need To Remove Bad Incentives, Reward Good Planning, Safe Building, and Safe Reconstruction


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What is a Disaster?

Loss of a Job? Loss of One’s Home? Loss of a business or industry? Loss of a Community Facility? Widespread Loss of Power? Wildfire? Blizzard?


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What is a Disaster?

It’s All a Matter of Perspective Victim Local Community State Federal Government


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Must an Event be a “Disaster”?

Preparation Individual

Insurance Disaster Kit/Plan

One’s Community Disaster resistant building codes/zoning Pre-Disaster Mitigation Mutual Assistance compacts Disaster Contingency Planning Volunteers – the Citizens Corps StormSmart Coasts Materials


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To Set the Stage For Our Discussion Lets discuss some basics of Law

In the Law-especially criminal law- Attorneys often seek to identify someone else to take the blame

For increased flood damages that “Someone Else” is often…


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Mother Nature


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Does Nature Cause Disasters?

Dr. Gilbert White, the late, great, founder of the internationally recognized Natural Hazards Center, headquartered in Colorado, stated the facts:

“Floods are Acts of Nature; But Flood Losses Are Largely Acts of Man”


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I Hope All of You Will Agree

Among the Most Clear Lessons of The Horrific Floods of this Decade:

There Is No Possibility of A Sustainable Economy Without Safe Locations for Business and Industry to Occupy

We Need Safe Housing for Employees to Work at Businesses and Industry – to Have an Economy at All


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Trends in Flood Damages

Flood losses and reported flood heights are increasing

Demographic trends indicate great future challenges


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Demographic Projection: Colorado Population in 2050

Colorado's population is expected to nearly double by 2050. In 2008, approximately 5 million people resided in the state. By 2050, Colorado's population is projected to be between 8.7 and 10.3 million people, with the majority residing in the Arkansas, South Platte and Metro Basins. However, the western slope of Colorado will see the greatest percentage increase in population during the next 40 years

Citation:A 2050 VISION FOR COLORADO'S WATER SUPPLY FUTURE Authors: Nicole Rowan, CDM, Susan Morea, CDM , Eric Hecox, Colorado Water Conservation Board

Colorado's population is expected to nearly double by 2050.

Where Will These Folks Wish to Live?


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$6 billion annually Four-fold increase

from early 1900s Per capita damages

increased by morethan a factor of 2.5 inthe previous century inreal dollar terms

In the 2000’s Think About Nashville, Atlanta, the Red River of the North

ASFPM Analysis of Trends in Flood Damages$2.2

$2.9

$2.4

$3.4

$2.2

$4.9

$3.3

$5.6

$25

$2.0

0 5 10 15 20 25 30

1910s

1920s

1930s

1940s

1950s

1960s

1970s

1980s

1990s

2000s

Billions (adjusted to 1999 dollars)

USACE Slide courtesy of Pete Rabbon

All Shareholders Can Also Contribute to Increased Risk!

Residual Risk Can Be Increased

RISK

Vastly Increased Residual Risk

Initial Risk

Critical Facilities Not Protected From Flooding

Levees Not Properly Designed/Maintained

Lack of Awareness of Flood Hazard-Lack of Flood, Business Interruption, DIC Insurance

Increased and more Costly Development

No Warning/Evacuation Plan- or A Poorly Developed and Exercised Plan

Fill in floodplain or Wildfires Increases Flows

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Central Message

Even If We Perfectly Implement Current Fort Collins Higher Floodplain Regulations,

Damages Will Continue or Increase.

Remember, we have done a number of positive things, both non-structural and structural, but…We’ll discuss why that is…


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But There Is Hope!

Association of State Floodplain Managers No Adverse Impact concept and message

New and exciting APA and ABA awareness and initiatives Ongoing Fort Collins Activities Colorado Water Conservation Board Initiatives Improved FEMA Flood Mapping Program-Risk MAP The formation of the National Hazard Mitigation

Collaborative Alliance Formation of the Natural Hazard Mitigation Association


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Paul Farmer: Executive Director of the American Planning AssociationJune 2009

“APA's Hazards Planning Research Center is currently preparing FEMA-funded best practice materials showing how hazard-mitigation and adaptation plans can be integrated into comprehensive planning efforts at all scales — from the neighborhood to the region.”

This Document Has Just Been Released and Is Available Excellent in My Opinion


American Bar Association Resolutions 107 A-G Adopted by the ABA House of DelegatesJanuary 2009

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coverages

Summary of Resolution 107 E“The following recommendations of the Financial Services Round Table Blue Ribbon Commission on Megacatastrophes are highly desirable loss mitigationsuggestions:State of the art building codesCost-effective retrofittingLand use policies that discourage construction posing high risk to personal safety or property loss. Property tax credits to encourage retrofittingThese and related elements of loss mitigation are designed to ultimately bring to market affordable insurance policies with broadened coverages.”


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Why Are Floods Getting Worse?Fundamental Misunderstandings:Where is the Floodplain?


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Special Flood Hazard Area

If you prevent floodplain fill,you keep existing development safe.


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Large areas of thefloodplain are filled

and developed.

Fill

Larger Special Flood Hazard Area After Filling


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Flood Heights May Increase Dramatically More Than a Half-foot Even in Fort Collins!

Other factors may well cause a significant increase in flood Heights

Legally permitted fill and encroachments Wildfires Debris Blockage

Serious Public Safety Issues

Deeper and Higher Water Results?


Safe Development Is Affordable The American Institutes for Research has conducted a

detailed study on the cost of floodproofing and elevation

That study supports the idea that elevation and floodproofing costs add very small sums and have a significant societal payback

The Multihazard Mitigation Council, a group which includes private industry representatives, reports that hazard mitigation has a proven 4-1 payback

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The Choice of Development or No Development is a False Choice!

The Choice We Have as a Society is Rather Between:1. Well planned development that protects people and

property, our environment, and our precious Water Resources while reducing the potential for litigation; or

2. Some current practices that are known to harm people, property, and natural floodplain functions-

… and may lead to litigation and other challenges 31


Why Are Governments Not Acting To Prevent Harmful Development?

NOAA Just Completed A Study Which Surveyed Planners As To Impediments To Safe Development

Two Major Reasons Cited:

Fear of the “Taking Issue”

Economic Pressure32


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When One Group Pays Maintenance or Replacement of Something Yet Different Person or Group Uses That Same Something, We Often Have Problems

Disaster Assistance Is An Classic Example of Externality

Who Pays For Disaster Assistance? Who Benefits?

Reason #1 For Insufficient Standards:Economics and Externality


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Who Pays For Disaster Assistance?

Costs of flooding are usually largely borne by: a) The Federal and Sometimes the State Taxpayer

Through IRS Casualty Losses, SBA Loans, Disaster CDBG Funds, and the Whole Panoply of Federal and Private Disaster Relief Described in the Ed Thomas and Sarah Bowen Publication "Patchwork Quilt” (Located at:http://www.floods.org/PDF/Post_Disaster_Reconstruction_Patchwork_Quilt_ET.pdf

b) By Disaster Victims Themselves


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Cui Bono? (Who Benefits?)…

From Unwise or Improper Floodplain Development-a)Developers? b) Communities?c) State Government? d) Mortgage Companies?e) The Occupants of Floodplains?

Possibly in the short-term, but definitely NOT in the long- term


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Why Should Government Do Something About This?

Fundamental Duty Protect The Present Preserve A Community’s Future


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Why Else Should Government Do Something About This?

In a Word:

Liability


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Litigation for Claimed Harm Is Easier Now Than In Times Past

Forensic Hydrologists

Forensic Hydraulic Engineers


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New Trend In The Law

Increasingly States Are Allowing Lawsuits Against Communities for Alleged Goofs in Permitting Construction Or in Conducting Inspections

Excellent Paper By Attorney Jon Kusler PhD For The Association of State Floodplain Managers Foundation Available On Line at www.floods.org


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Three Ways to Support Reconstruction Following Disaster Damage

1. Self Help: Loans, Savings, Charity, Neighbors2. Insurance: Disaster Relief is a Combination of

Social Insurance and Self Help3. Litigation

The preferred alternative is…To have NO DAMAGE

Due to Land Use and Hazard Mitigation


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Lincoln, Nebraska

Flooded Homes May Cost City MillionsCity Held Liable – Damages Still To Be Determined

Photo: Lincoln Star Journal


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Short Legal Summary from Colorado

City owed a duty to landowner not to interfere with natural flow of river, either by plan of improvement adopted, or by a failure to maintain it such that flood burden on land was greater than if channel were left in natural state.

Denver v. Pilo, Supreme Court of Colorado, 102 Colo. 326; 79 P.2d 270 (1938)

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How About Immunity? Where revised off-ramp caused flooding…under the Colorado

Governmental Immunity Act, county was required to exercise reasonable care to correct condition….

Larry H. Miller Corp.-Denver v. Bd. of County Comm'rs, Court of Appeals No. 02CA0545 , COURT OF APPEALS OF COLORADO, DIVISION FOUR , 77 P.3d 870 (2003)

And- “…city's storm drainage system flooding plaintiff's adjacent property

constituted continuing trespass….” Docheff v. City of Broomfield, 623 P.2d 69 (Colo. App. 1980)


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Reason #2 Why Safer Standards Are Not Implemented:

Concerns About A “Taking”


Increase in Cases Involving Land Use There has been a huge increase in Taking Issue Cases,

and related controversies involving development Thousands of cases reviewed by Jon Kusler, me and

others Common thread? Courts have modified Common Law

to require an Increased Standard of Care as the state of the art of Hazard Management has improved

Government is vastly more likely to be sued for undertaking activity, or permitting others to take action which causes harm than it is for strong,

fair regulation 47 47


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Taking Lawsuit Results:Regulations clearly based on Hazard Prevention and fairly applied to all: successfully held to be a Taking – almost none!

Many, many cases where communities and landowners held liable for harming others


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Can Government Adopt Higher Standards Than FEMA Minimums?

FEMA Regulations Encourage Adoption of Higher Standards-”… any floodplain management regulations adopted by a State or a community which are more restrictive than (the FEMA Regulations) are encouraged and shall take precedence.” 44CFR section 60.1(d). (emphasis added)


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Hazard Based Regulation And The Constitution

Hazard Based Regulation Generally Sustained Against Constitutional Challenges

Goal of Protecting the Public Accorded ENORMOUS DEFERENCE by the Courts


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Extremely Important US Supreme Court Case On Takings

Lingle v. Chevron, US Supreme Court No. 04-163 Decided May 23, 2005


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In Lingle, The Supreme Court States How To Determine If There Is A Taking

The Court Indicated that The Constitution Prohibits Government Regulation Is Functionally Equivalent to a Direct Appropriation of or Ouster from Private Property


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Hazard Based Regulation Generally Sustained Against Constitutional Challenges

Goal of Protecting the Public Accorded ENORMOUS DEFERENCE by the Courts


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Why Should Government Do Something About This?

Fundamental Duty Protect The Present Preserve A Community’s Future


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Is There A Government Right to Prevent Harm?

Does Government Have a “Duty to Prevent Injurious Consequences from Floods?


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Why Else Should Government Do Something About This?

In a Word:

Liability


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Floods and Litigation

When Someone Is Allegedly Damaged by the Actions of Others Who Pays?

This is a Fundamental Question of Law.


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Grounds For Suit

Standard of Care for Professionals Is Increasingly High As Professionals Develop Increasingly Sophisticated Design Methods

Previously Accepted Defenses Such As the Common Enemy Doctrine for Flood Fighting is Increasingly Replaced By “Rule of Reasonable Person”

The “Reasonable Person” is Expected To Be Something Like An Expert When We Are Discussing Something Like Land Use


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Proof of Causation of Harm Is Easier Now Than In Past Times

Forensic Hydrologists

Forensic Hydraulic Engineers


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Examples of Situations Where Governments Have Been Held Liable

Construction of a Road Blocks Drainage Stormwater System Increases Flows Structure Blocks Watercourse Bridge Without Adequate Opening Grading Land Increases Runoff Flood Control Structure Causes Damage Filling Wetland Causes Damage Issuing Permits for Development Which Causes Harm

to a Third Party


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In These Examples Of Community Legal Liability For Permitting Or Undertaking Activity

Is There A Theme?

YOU BET!!!

What is that Theme?


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The Theme They did not do No Adverse Impact Planning!!! They Did Not Adopt the Higher Standards of the CRS

Program!! They Did Not Identify the Impacts of the Development

Activity They Did Not Notify the Soon- to- Be Afflicted Members

of the Community They Did Not Re-Design or Re-Consider the Project They Did Not Require Appropriate and Necessary

Mitigation Measures


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Landowner Does Not Have All Rights Under The Law

No Right to be a Nuisance No Right to Violate the Property Rights of Others No Right to Trespass No Right to be Negligent No Right to Violate Laws of Reasonable Surface

Water Use; or Riparian Laws No Right to Violate the Public Trust


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Public Entities Do Not Have The Right To Do Just Anything Either!

No Right to Use Public Office To Wage Vendettas

No Right To Abuse the Public No Right To Use Regulation To Steal From a

Landowner


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Liability Can Sometimes Be Established Under A Variety of Theories: Failure To Follow Your Own Plan

Keystone Elec. Mfg. Co. v. City of Des Moines, 586 N.W.2d 340, 343 (Iowa 1998)

“We conclude that the City's decisions concerning how to fight the flood do not fall under the discretionary function exception to liability under Iowa Code section 670.4(3) of Iowa's Tort Liability of Governmental Subdivisions Act....”


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A Solution

Go Beyond NFIP Minimum Standards No Adverse Impact-CRS Type:

Development decision-making Planning Emergency Preparedness


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Why Go Beyond the Current Minimum Standards?

Flood damages are continuing and/or increasing

unnecessarily!

Current approaches deal primarily with how to build in a floodplain vs. how to minimize future damages


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No Adverse Impact Floodplain Management(Such as Higher Standards for Floodplain Management)

What is “No Adverse Impact” Floodplain Management”?

ASFPM defines it as “…an Approach that ensures the action of any property owner, public or private, does not adversely impact the property and rights of others”


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No Adverse Impact Explained

NAI is a concept/policy/strategy that broadens one's focus from the built environment to include how changes to the built environment potentially impact other properties.

NAI broadens property rights by protecting the property rights of those that would be adversely impacted by the actions of others.


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What Is The Result Of Implementing Higher Standards?

PROTECTION OF THE PROPERTY RIGHTS OF ALL Legally Speaking, Prevention of Harm is Treated

Quite Differently Than Making the Community a Better Place.

Prevention of Harm to the Public Is Accorded Enormous Deference by the Courts


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Higher Standards:

Are consistent with the concept of sustainable development

Provide a pragmatic method for regulation Make sense on a local and regional basis May be rewarded by FEMA’s Community Rating

System, especially under the new CRS Manual Can reduce the potential for litigation against a

community


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No Adverse Impact Floodplain Management

New concept? No, it is a modern statement of an Ancient Legal Maxim “Sic utere tuo ut alienum non laedas” Use your property so you do not harm others Detailed Legal Papers by Jon Kusler and

Ed Thomas available at: www.floods.org More information in ASFPM’s A Toolkit on Common

Sense Floodplain Management at: www.floods.org


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According To the Writings of One of Our Greatest Moral Philosophers -Mohandas K. Gandhi:

“Sic Utere Tuo Ut Alienum Non Laedas” That Is, In English: Use Your Property So You Do Not

Harm Others is: “A Grand Doctrine Of Life And The Basis Of (Loving

Relationships) Between Neighbors”


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Who Else Likes Sic Utere…? Colorado Supreme Court

The police power is an attribute of sovereignty and exists without any reservation in the constitution, being founded upon the duty of the state to protect its citizens and provide for the safety and good order of society. * * * It is founded largely on the maxim sic utere tuo, ut alienum non laedas."

People v. Hupp, 53 Colo. 80, 83 (Colo. 1912)


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Group Exercise!

Do Reasonable, Fairly Applied Hazard Based Regulations Decrease The VALUE of A Property?

Not The Price, The VALUE.

Hint: The Problem Of The Purloined Purse.


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The Purloined Purse Defense

Fifth Amendment to the Constitution of the Unites States: “… nor shall private property be taken for public use without just compensation.”


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Result “The taking clause was never intended to

compensate property owners for property rights they never had.” – Massachusetts Supreme Judicial Court

Gove v. Zoning Board of Appeals

444 Mass.754 (2005) Massachusetts Supreme Judicial Court, decided July 26, 2005


How About Another Defense? I Have a Permit to Snatch Wallets and Purses?

Right Here-Look

Legislature Passed a Law to Help Raise Funds for Local Government

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Purloined Purse In A Flood Context

Defendants built flood control works knowing that they could cause upland flooding, and such works were a substantial concurring cause of the injury.

Akins v. California, 48 Cal. App. 4th 832 (Cal. App. 3d Dist. 1996)

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A Conservative, Property Rights View

The Cato Institute Indicates that Compensation is Not Due When:

“… regulation prohibits wrongful uses, no compensation is required.”


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Other Contributing Factors: Think about the following scenarios-

Debris blockage (models assumes no blockage) Wildfires (exacerbated flows from burned vegetation) Technical assumptions and other uncertainties


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Might Fort Collins Wish To Consider These Higher Standards?

Consider: A) Uncertainties in flood elevations-50% Confidence B) Consequences if a factory, water treatment plant or other critical facility is flooded C) 50% Chance That 1% Flood will be exceeded within 70 years according to Bulletin 17 B of the WRC D) Changes in flood heights and velocities due to factors such as upstream wildfires and mud slides/mudflow E) Climate Variability and Climate Change


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Hazard based regulation is generally sustained against Constitutional challenges

Goal of protecting the public accorded ENORMOUS DEFERENCE by the Courts


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Summary Higher Regulatory Standards Are:

A) Legal B) Equitable C) Practical D) Defensible in Court E) Supported by good economic analysis F) The very basis of sustainability G) Rewarded under the Community Rating

System


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Take Away Messages For TodayPrevention We Throw Money At Problems After They

Occur We Can Pay A Little Now; Or Society Pays

Lots Later The Legal System Is Ready To Help Society

Pay Later


Some Messages to Floodplain & Emergency Managers From My Negotiations Training

Floodplain & Emergency Mangers Have to Stop Being The Abominable No People!!

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Find A “Yes”

We Are For Development We Are For Safe Place For Our Citizens To Live We Must Consider Others When We Develop Channel Any Emotion Into Action


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Steps to Uncover the “Yes”

Never Start With “NO!” We Are Against NO Start With What We Are For We Want Your Development! We Need The Tax Revenue


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If Needed:Develop A Well Thought Out-Clear NO!

Know Your Stuff Develop a Plan B Build a Coalition-Partnerships Who Shares Your Interests? Take Away Their Ability To Launch A Surprise Attack Consider The Worst Case Consider The Worst Case If You Have To Live With A

Yes, When You Should Have Said No The Mirror Test


If It Is A Good Project...

Yes.

Yes.

Yes!90


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Take Away Message

Responsible For Community Development? Many Areas Can Flood Uninsured Victims Will Likely Sue-If They Can Find

Someone to Blame Fair Harm Prevention Regulation Helps Everyone


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Take Away Message

Community Leaders Have Responsibility for Public Safety and Need To Be Aware:

Many Areas Can Flood Uninsured Victims Will Likely Sue- and will try to

find someone to blame Fair Harm Prevention Regulations Help Everyone


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Message For All Involved In Community Development

The Fundamental Rules of Development Articulated, By Law, Envision Housing and Development Which Is:

Decent Safe Sanitary Affordable


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Flooded Development Fails That Vision!

Housing And Development Which Flood Are: Indecent Unsafe Unsanitary Unaffordable- by the Flood Victims, By Their

Community, By The State, and By Our Nation.


Summary

Fundamentally Our Society Must Choose Either: Better Standards to Protect Resources and People or Standards Which Inevitably Will Result in Destruction and Litigation

The higher regulations which Fort Collins is considering are a step in the Right Direction

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Next Steps

When is the Right Time to Do the Right Thing?

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Questions and Answers

Fort Collins Government Best Practices Leadership Link

Documents

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