A New Coast by Jeffrey Peterson

Author:Jeffrey Peterson
Language: eng
Format: epub
Publisher: Island Press
Published: 2019-03-08T16:00:00+00:00

Regulatory Tools for Relocation

The primary barrier to use of financial tools to implement relocation plans is scarce dollars. Communities without access to a large tax base or federal storm recovery funds have the less costly option of using regulatory tools to implement a relocation strategy by preventing development of undeveloped areas at risk from rising seas, forcing transfer of property ownership from unwilling sellers using powers of eminent domain, as well as to limiting changes to existing property and structures, including construction of shore protection measures. Any effort in this direction, however, must navigate the changing shoals of judicial decisions concerning the takings provisions of Fifth Amendment to the Constitution.

Communities focusing their storm surge and sea level rise adaptation plans on relocation, rather than structural protection or flood accommodation, can use some of the same regulatory tools discussed in the previous chapter, especially tools concerning where to build and tools limiting use of private coastal protection structures. In addition, the same limits that might be accomplished by purchase of a “rolling conservation easement” can also be accomplished using regulations. As discussed earlier, the primary regulatory tools available to most local government are zoning powers and floodplain ordinances adopted under the National Flood Insurance Program. In effect, communities can use the zoning process to identify where relocation is the preferred response to rising seas and define restrictions for these zones (e.g., prohibition on coastal protection structures or regrading) that allow shorelines to migrate inland as sea level rises. This approach would be less controversial politically and legally if applied to land already zoned for open space or other undeveloped lands and more controversial if the rolling easement zone put homes or other major assets at risk.

Local governments interested in using regulatory authority to implement a relocation approach to sea level rise need to consider the legal basis for regulatory actions. Virtually all coastal states have delegated zoning authority to local government, but the level of government holding these powers varies in different parts of the country and may be different from the government responding to sea level rise. Some states require that zoning be directly linked to a local comprehensive plan. Some states give local governments broad powers while others limit local governments to activities specifically delegated to them by the states.

An example of a rolling easement expressed as a regulation is the Rhode Island Coastal Resources Management Program provision for setbacks of most development activities from an inland boundary with the distance determined based on thirty times the annual erosion rate, or sixty times for larger projects. The county of Kaua’i, Hawaii, has a coastal setback requirement that is based on the average annual erosion rate multiplied by a planning period of 70 to 100 years, providing an even greater rolling buffer.

Finally, although not a regulatory measure per se, some local governments have adopted policies to deny municipal services, such as roads, or utilities such as water, sewer, and power. Services might be withheld to proposed new development in risky areas, terminated to existing properties, or simply not replaced after a storm.

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