Presentation on theme: "A Whole Community Approach for Truly Comprehensive Planning :"— Presentation transcript:
1University of Hawaii Department of Urban & Regional Planning Disaster Management Program A Whole Community Approach for Truly Comprehensive Planning :Using the Principles of Emergency Management toPlan and Promote a Safe, Sustainable and Fair FutureFebruary 13, 2012Edward A. Thomas Esq.PresidentNatural Hazard Mitigation Association
2Aloha kakahiaka!I appear today representing: The Natural Hazard Mitigation Association This is not and cannot be legal advice. This is a statement of general principles of policy.I would like to thank Michael Baker Jr., Inc for its support of some of the research which has gone into this presentation. This presentation Is Not-Anti DevelopmentIt is Pro-Good, Thoughtful Development Which Does Not Harm People and Property
3First Some Words From Our Sponsor What is NHMA? NHMA was created in 2008 to bring together the various individuals and organizations working in the field of Hazard mitigation.
4NHMA Membership Includes People wanting to make a difference and work towards reducing losses from disastersEngineers, planners, floodplain mangers, government officials, community activists, academics, practitioners, students, etc.People involved in building resilient organizations and communities
5Hazard Mitigation: Plain Common Sense "Disaster risk reduction is not a luxury. It's an essential insurance policy for a more disaster-prone world, and one of the smartest, most cost-effective investments we can make in our common future. The benefits of this investment will be calculated not only in dollars saved, but most importantly, in saved lives."Jan Egeland, Former U.N. Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator
6To Set the Stage For Our Discussion: Lets discuss some basics of lawIn the law-especially criminal law- attorneys often seek to identify someone else to take the blameAlso often referred to as: “Round up the usual suspects.”For increased flood damages that “someone else” is often…66
7Mother Nature 7 Our Own Dear Mother Nature It was an act of Nature Global warming Made it worseSea Level Rise to Blame77
8Does Nature Cause Disasters? Dr. Gilbert White, the late, great, founder of the internationally recognized Natural Hazards Center, stated the facts:“Floods are acts of nature; but flood losses are largely acts of man”88
9The Enemy Is Us!Should we blame Mother Nature or some other “force” for our devastating flood losses?Or perhaps can the blame be put on human engineering, architectural and construction building improperly in areas where natural processes like tsunamis, tornadoes, floods, hurricanes, wildfires will foreseeable take place.
10Introduction: Can We All Agree? Among of the most clear lessons of the horrific aftermath of Hurricane Katrina, Hurricane Iniki, Hurricane Omar, the recent Tsunamis:There Is no possibility of a sustainable economy without safe housing and safe locations for business and industry to occupyWe need housing for employees to have businesses and industry – to have an economy at allIn Island locations like Hawai’i, functioning transit routes are especially critical for the economy and life itselfCan we all agree?10
11Must Sustainability Or “Smart-Growth” Have A Foundation in Hazard Mitigation? The Spring 2007 Edition of The Urban Lawyer contains an article which summarizes the views of 16 of the leading gurus of the “Smart Growth” MovementA total of 135 separate principlesNone refer to hazards specificallyA very few refer to protecting natural resourcesGabor Zovanyi is the author; Article is “The Role of Smart Growth Legislation in Advancing the Tenets of Smart Growth”Well Golly, You would not Know That by reading the literature.1111
12But There Is Hope!New and Exciting APA and ABA Awareness and InitiativesImproved FEMA Flood Mapping Program-Risk MAPThe Formation of the National Hazard Mitigation Collaborative AllianceFormation of the Natural Hazard Mitigation AssociationUSACE Silver Jackets ProgramNumerous Organizations in Hawai’i working on disaster preparednessMedia and Other National Leaders Are Finally Catching on to the Real Reasons Flooding and Other Natural Disasters Are Increasing in Consequence
13CNN Discussion of the Atlanta Flooding: “Before the storm stalled over Atlanta, the metro area had been in a prolonged drought.Jeras, the CNN meteorologist, said “the urbanization of Atlanta and its suburban sprawl also contributed to the floods.”“Instead of hitting soil, much of the rainwater ran straight into concrete, where it runs very fast and can overwhelm rivers and drainage systems.”"There used to be a lot more earth and soil to help absorb this stuff," she said. "But the rain really fell on the concrete jungle.”
14The American Planning Association Is Now Turning Increased Attention To Hazards! Paul Farmer, Executive Director of APA June 2009:“Where one builds is just as important as what one builds and how one builds....and it's time now for planners to boldly take the lead in community and professional debates on their interrelationships. They should point out that good buildings simply should not be built in bad locations — something that those enamored of environmental rating systems for individual structures would do well to remember.”
15Paul Farmer Also Writes: “Sometimes the response is easy: Just say no to new buildings on barrier islands or in wildfire-prone canyons. Sometimes it's not so simple: Planners confront very real moral, ethical, and public policy dilemmas in places like New Orleans, the Sacramento-San Joaquin River Delta, or known high-hazard zones of Florida.”
16New American Planning Association Publication “APA's Hazards Planning Research Center (has prepared) a 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 Is Available from APAExcellent in My OpinionPaul Farmer story
17New APA Publication Edited by Jim Schwab Hazard Mitigation: Integrating Best Practices into Planning,edited by James Schwab, AICP
18American Bar Association Summary of ABA Resolution 107 E:“The following recommendations of the Financial Services Round Table Blue Ribbon Commission on Megacatastrophes are highly desirable loss mitigation suggestions:> State of the art building codes> Cost-effective retrofitting> Land 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.”
19American Bar Association Resolution 114; Adopted by the ABA House of Delegates; February 2011 The American Bar Association has subscribed to the White Paper on Hazard Mitigation prepared by the National Emergency Management Association (NEMA) under contract to FEMAIn Resolution 114 ABA voted to:a)Support hazard mitigation through disaster planning;b) Recognize the role of state and local government;c) Give due regard to property rightsd) Legal issues
20Who Is Responsible for the Safety and Security of: Your family?Your home?Your community?Your business?
21Key ThemesWe need to think broadly to solve our serious problems- including sea level rise and climate changeWe must stop making things worseWe will have opportunities to change legislation over the next few yearsRight now we have a system which rewards dangerous behaviorWe need to adapt by removing perverse incentives, reward good planning, safe building, and safe reconstruction21
22Trends in Damages Following Natural Events Wind, Flood, Earthquake, Wildfire losses are increasing quite dramaticallyDemographic trends indicate great future challengesMore challenges from sea level riseEven more challenges likely from climate change22
23Trends in Flood Damages $6 billion annuallyFour-fold increase from early 1900sPer capita damages increased by more than a factor of 2.5 in the previous century in real dollar termsAnd then there was Katrina, Rita, WilmaThe key here is that despite what we have done and the money we havespent this century, damages continue to go up-Unnecessarily, in our opinionThen there was Katrina --- $6 Billion +2323
24Flood and Wind Disasters Have Been Increasing Most Courtesy of Dr. Roger Pielke Jr.Source: Munich Re24
25US Damage If Every Hurricane Season Occurred in 2005 Courtesy of Dr. Roger Pielke Jr25
31Flood Risk = P (Probability of flood) X Consequences) Courtesy of Pete Rabbon USACE31Courtesy of:Edward Thomas, Esq.
32USACE Slide courtesy of Pete Rabbon 32Courtesy of:Edward Thomas, Esq.
33All Shareholders Can Also Contribute to Increased Risk! Initial RiskNo Warning/Evacuation PlanUpstream Development Increases FlowsLack of Awareness of Flood Hazard-Lack of Flood, Business Interruption, DIC InsuranceCritical Facilities Not Protected From FloodingRISKIncreased DevelopmentInfrastructure Not Properly Designed/MaintainedVastly Increased Residual RiskRISK Increase Factors33Courtesy of:Edward Thomas, Esq.
34Central Message: Even if we perfectly implement current 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…For example:The nation’s taxpayers have paid for over $100 billion in structural worksThe NFIP has resulted in 19,000 communities regulating new and improveddevelopmentNumerous ag programs provide stream buffers and wetland preservation3434
35Why Are Floods Getting Worse Why Are Floods Getting Worse? Fundamental Misunderstandings: Where is the Floodplain?35
36If you prevent floodplain fill, you keep existing development safe. Fill increases the flood elevation upstream and downstream.Special Flood Hazard AreaIf you prevent floodplain fill,you keep existing development safe.
37Large areas of thefloodplain are filledand developed.Fill
38Larger Special Flood Hazard Area After Filling Point out the floodplain before developmentPoint out where the floodplain has been developed with fill and buildings. Such development in the flood fringe will ultimately lead to higher flood levels-WE USED FLOODPLAIN DEVELOPMENT FOR EASE OF GRAPHICSThe result:homes that already existed will now be subject to floodinghomes that are built to the flood level on the map, will not be protected to the 1% flood level, like they thought they were.Larson Plasencia Article-6ft. Rise documented in Charlotte etc38
39Flood Heights May Increase Dramatically Other factors may well cause a significant increase in flood heightsLegally permitted fill and encroachmentsWildfiresDebris blockageThe City of Charlotte and Mecklenburg County area (including six towns) is located insouth-central North Carolina. The County is 525 square miles in size and has increased in populationby 245,000 in the last 20 years. It is estimated that an additional 300,000 residents will locate inCharlotte-Mecklenburg over the next 25 years. In the past, traditional stormwater/floodplainmanagement techniques were employed, such as joining the NFIP, using voter-approved bond fundsfor the protection of property losses due to erosion, and requiring detention on commercialdevelopment. Starting in 1994, Charlotte-Mecklenburg initiated a stormwater management program,funded by a stormwater fee, to address infrastructure problems on private property and expand theexisting floodplain management program.In 1995 and 1997, flooding caused $20 million and $60 million in losses, respectively.During this period and as part of the expansion of the floodplain program, Mecklenburg County wasin the process of developing the Mecklenburg County Floodplain Management GuidanceDocument, adopted in late 1997.By updating the FEMA map computer models to 2000 land use conditions, floodheights increased 2-3 feet. However, when the ultimate land use in the watershed wasloaded into the models, flood height increased another 2-3 feet. Therefore, if theCounty continues to rely on FEMA for floodplain mapping, the maps will not bekeeping up with the impact of development. There is a possibility that newdevelopment would be permitted that will ultimately be as much as 4-6 feet belowfuture flood heights.3939
40Deeper and Higher Water Results? Serious Public Safety IssuesTypical rule of thumb first developed by Bureau of Reclamation. Instituted by Pierce County, Washington.
41Safe Development Is Affordable The American Institutes for Research has conducted a detailed study on the cost of floodproofing and elevationThat study supports the idea that elevation and floodproofing costs add very small sums and have a significant societal paybackThe Multihazard Mitigation Council, a group which includes private industry representatives, reports that hazard mitigation has a proven payback
42The 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 challengesSustainability and triple bottom line
43Why Are Governments Not Acting To Prevent Harmful Development? NOAA recently completed a study which surveyed planners as to impediments to safe developmentTwo major reasons cited:Fear of the “taking” issueEconomic pressure
45Reason #1 For Insufficient Standards: Economics and Externality When one group pays maintenance or replacement of something yet different person or group uses that same something, we often have problemsDisaster assistance is a classic example of externalityWho Pays For Disaster Assistance?Who Benefits?
46Who 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 et al. publication:Planning and Building Livable, Safe & Sustainable Communities: The Patchwork Quilt Approachb) By disaster victims themselves
47Cui 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, butdefinitely NOT in the long-termCui bono ("To whose benefit?", literally "[being] good for whom?") is a Latin adage that is used either to suggest a hidden motive or to indicate that the party responsible for a thing may not be who it appears at first to be. With respect to motive, a public works project which is purported to benefit the city may have been initiated rather to benefit a favored campaign contributor with a lucrative contract.Commonly the phrase is used to suggest that the person or people guilty of committing a crime may be found among those who have something to gain, chiefly with an eye toward financial gain. The party that benefits may not always be obvious or may have successfully diverted attention to a scapegoat, for example.4747
48Why Should Government Do Something About This? Fundamental dutyProtect the presentPreserve a community’s futureBe a Responsible Trustee of the “Public Trust”4848
49Why Else Should Government Do Something About This? In a Word:Liability4949
50Litigation for Claimed Harm Is Easier Now Than In Times Past Forensic hydrologistsForensic hydraulic engineersForensic Wildfire, and other ExpertsToday, sophisticated modeling techniques facilitate proof of causation and allocation of fault although proof may still be difficult. See, e.g., Lea Company v. North Carolina Board of Transportation, 304 S.E.2d 164 (N.C., 1983)5050
51New Trend In The LawIncreasingly states are allowing lawsuits against communities for alleged “goofs” in permitting construction or in conducting inspectionsExcellent paper By Attorney Jon Kusler PhD for The Association of State Floodplain Managers (ASFPM) Foundation available online at51
52Three Ways to Support Reconstruction Following Disaster Damage Self help: loans, savings, charity, neighborsInsurance: disaster relief is a combination of social insurance and self helpLitigationThe preferred alternative is… to have NO DAMAGE due to land use and hazard mitigation
53Ka Loko Reservoir Kauai 2006 Risk to Whom-For What:Civil Damages and a Criminal Case ForManslaughter Following This Flood
54Examples of Situations Where Governments and Landowners May Be Held Liable for Unreasonable Activity Construction of a Road Causes DamageStormwater System Increases Flows See, F. Koehnen, Ltd. v. County of Hawaii, 47 Haw. 329 (Haw. 1963)Development Blocks WatercourseBridge Without Adequate OpeningGrading Land Increases Runoff- Flood Control Structure Causes Damage See, Ass'n of Apt. Owners of Wailea Elua v. Wailea Resort Co., 100 Haw. 97 (Haw. 2002)Filling Wetland Causes DamageIssuing Permits for Development Which Causes Harm to a Third PartyIn these cases, the development permitted caused someone harm. Even without regulation there can be legal redress using many theories of liability such as Negligence.STOP_TAKE THEM ONE AT A TIME!Many of these Utah cases are on motions for Summary Judgment so we are not necessarily sure how they turned out5454
55More Litigation Threatened or Discussed in Hawai’i Lualualei flooding situationMakaha ValleyPuuhulu Road/Puuhulu Stream
56Developer, engineer, and realtor settle with homeowners Lincoln, NebraskaFlooded HomesDeveloper, engineer, and realtor settle with homeownersCity at first held liable; then wins in Nebraska Supreme Court– City “owed no duty to homeowners”56Photo: Lincoln Star Journal
57From California….. January 2008: Lawsuit seeks $1 billion in Marin flood damage The plaintiffs – 265 individuals and businesses – are each seeking $4.25 million in damagesLawyers representing the victims could collect more than $66 million in fees57
59City Of Half Moon Bay, California November, 2007 City Liable for nearly $37,000,000 under the Federal and State Takings Clauses, as well as the Common Law Doctrines of Nuisance and Trespass, for constructing a storm water drainage system which flooded someone59
60Fernley, Nevada: “Class-action lawsuit updated in Fernley flood case” “The lawsuit names the Truckee-Carson Irrigation District, Lyon County, the city of Fernley, and companies that built and sold homes in the area flooded when a storm-swollen irrigation canal ruptured” Nevada Appeal, 1/26/0860
61California Law Changes 1986 Sacramento River FloodCalifornia Law Changes1 levee rupture+ 50,000 people evacuated + 9,000 families left homeless counties declared+ $532 million in damages+ almost 2 decades of litigationPhotographer: Geoff FrickerTown of Linda, Yuba County, CAState held liable for about $464 million in damages= Paterno, a landmark court decision in 2003Damages - $464 Million61
62Katrina Legal Situation Katrina Lawsuits500,000 Plaintiffs$278 Billion in damages requestedApproximately 1,000 plaintiffs attorneys involved - learning about levees, floods, and liabilityA copy of an article on this topic appeared in the National Wetlands Newsletter and is available at:For the first time in many years, lenders will lose considerable money on mortgages in a disaster areaThese Attorneys Are Ready to Come Help your Town too62
63Examples of Situations Where Governments Have Been Held Liable Construction of a road blocks drainageStormwater system increases flowsStructure blocks watercourseBridge without adequate openingGrading land increases runoffFlood control structure causes damageFilling wetland causes damageIssuing permits for development which causes harm to a third partyIn these cases, the development permitted caused someone harm. Even without regulation there can be legal redress using many theories of liability such as Negligence.STOP_TAKE THEM ONE AT A TIME!
64In These Examples Of Community Legal Liability For Permitting Or Undertaking Activity Is There A Theme?YOU BET!!!What is that Theme?6464
65The Theme They did not do Safe and Proper Planning!!! They did not adopt the higher standards of the CRS Program!!They did not identify the impacts of the development activityThey did not notify the soon-to-be afflicted members of the CommunityThey did not re-design or re-consider the projectThey did not require appropriate and necessary mitigation measures6565
66Landowner Does Not Have All Rights Under The Law No right to be a nuisanceNo right to violate the property rights of othersNo right to trespassNo right to be negligentNo right to violate laws of reasonable surface water use; or riparian lawsNo right to violate the public trustSTOP!!Lets Talk About These One At A TimeTALK!.Trespass? Why trespass in a Water Case?Negligence?Do you all know about “Public Trust”? Do you want to spend some time on it? "By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea." (Institutes of Justinian circa 530 A.D. some say 533 A.DHave you got this down? we will use it later to review a case.6666
67Public Entities Do Not Have The Right To Do Just Anything Either! No right to use public office to wage vendettasNo right to abuse the publicNo right to use regulation to steal from a landownerWe will discuss this in more detail later6767
68Liability 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....”
69How 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 (Colo. App. 1980)
70How About Immunity in Hawai’i? The basic principle of governmental tort liability in Hawaii now is that the state and its political subdivisions shall be held accountable for the torts of governmental employees in the same manner and to the same extent as a private individual under like circumstances. See, Cootey v. Sun Investment and County of Hawaii, 68 Haw. 480; 718 P.2d 1086 (1986) But: Government is not intended to be an insurer of all the dangers of modern life, despite its ever-increasing effort to protect its citizens from peril. See, Cootey v. Sun Investment and County of Hawaii, 68 Haw. 480; 718 P.2d 1086 (1986)
71Reason #2 Why Safer Standards Are Not Implemented: Concerns About A “Taking”7171
72The Constitution of the United States Fifth Amendment to the Constitution: “… nor shall private property be taken for public use without just compensation.”Was this some theoretical thought, or passing fancy?Which part of this directly mentions regulation?Pennsylvania Coal Company vs. Mahon 260 US 293 (1922). But See, Keystone Coal US 470, 1987.Lets start with the US Constitution.PA Coal was a bit strange- Haddacheck v Sebastian-Habeas Corpus etc 87% loss; Mugar v. KS total loss; Keystone Coal seems to overturn Pennsylvania Coal without ever saying so.7272
73Constitution of the State of Hawai'i Section 20. EMINENT DOMAIN. “Private property shall not be taken or damaged for public use without just compensation.” HRS Const. Art. I, § 20 Seems Even Broader than its federal counterpart because it protects not only property that is "taken," but also property that is "damaged.”
74Increase in Cases Involving Land Use There has been a huge increase in Taking Issue Cases, and related controversies involving developmentThousands of cases reviewed by Jon Kusler, me and othersCommon thread? Courts have modified Common Law to require an Increased Standard of Care as the state of the art of Hazard Management has improvedGovernment 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 regulationSTOP!!Funny you might think from talking to some developers that they were winning all over-wishful thinkingTALK!!Vastly more likely to be sued for permitting development that causes problems-roads, stormwater systems bridges runoff etc. When I say VASTLY I mean not one but TWO full orders of magnitude more likely to be successfully sued-ONE HUNDRED (100) times more likely to be sued for permitting or doing improper development!!!7474
75Taking 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 othersLucas-essentially denial of all economic use where others allowed to build; Lutherglen upheld on appealNot quite what you may hear from unhappy permit seekers, is it?7575
76Major Federal “Taking” Court Case Kelo v. New London, US Supreme Court, No , Decided June 23, 2005..Kelo Involves Condemnation, paid taking of residences. Has to do with whether economic development in a community is “public use”. The five to four decision by a sharply divided Court shows how much deference the majority of the Justices are willing to give to local decision makers. Pro government and Planning Associations cheered the decision. However, the widespread concern, outrage, and proposed legislative correction of the decision from groups concerned about the rights of “discrete insular minorities” (e.g. the NAACP) and Property Rights Advocates following the decision the Case has also illustrates the sensitivity of this type of issue.B) This unanimous decision in a case involving fees charged to permit the change of use of a hotel, does not directly relate to hazard regulation. Nevertheless it is important to floodplain managers because it indicates that taking claimants who have already litigated an alleged “taking” in state court do not necessarily get another “bite at the apple” in Federal court.There is another, quite disturbing case from Nevada (McCarren) involving FAA mandated height restrictions on the approach to an airport.7676
77Susette Kelo’s House Susette Kelo’s pretty pink house 77 Here is her homeOther properties of people more politically powerful were not taken.This redevelopment site does not have nice straight boundaries. Rather crooked boundaries in fact.This case has tremendously energized the Property Rights Movement- See NY Times Article ofThe case has what to do with Floodplain Regulation? Nothing yet everything….7777
78Extremely Important US Supreme Court Case on Takings Lingle v. Chevron, US Supreme Court No Decided May 23, 2005Lingle. This is a Takings Case which involves the State’s Ability to Restrict Rent Charged for Gas Stations. Some Commentators had Expressed the Thought that the Court Will Take this Opportunity to Clarify Takings Jurisprudence. By golly that is just what they did. We will discuss the guidance provided shortly over several slides7878
80Summary of Tests to Determine If There Is A Taking The tests articulated all aim to identify regulatory actions that are functionally equivalent to a direct appropriation of or ouster from private propertyNAI does not oust people from their property.It prevents them from harming others8080
81Can 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)Case law e.g. FEMA Elevation = 156 locals enforce 160 OK. MICHAEL GIRARD et al v. ZONING COMMISSION OF THE TOWN OF SIMSBURY NO. CV S SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HARTFORD - NEW BRITAIN, AT HARTFORD 1994 Conn. Super. LEXIS 2365 September 15, 1994, DecidedSeptember 16, 1994, Filed.8181
82Hazard Based Regulation And The Constitution Hazard based regulation generally sustained against Constitutional challengesGoal of protecting the public accorded ENORMOUS DEFERENCE by the CourtsThe more compelling the Public need the more likely to be sustained Lucas-Haddacheck vs. AnnacelliSTOP talk about the two cases!8282
83Why Go Beyond the Current Minimum Standards? Damages from foreseeable natural hazards are continuing and/or increasing unnecessarily!This is a re-capRemind viewers again that we need to change if we want to reduce damage-We can do it--remind them that floods are the most predictable of all thenatural hazardsWhere mitigation CAN prevent the next disasterCurrent NFIP approaches deal primarily with how to build in a floodplain vs. how to minimize future damages8383
84Climate Change & Sea Level Rise A few thoughts:Many folks thin that the subjects of “climate change” and “sustainability” are actually part of a vast left wing conspiracyI have written an article for the American Bar Association which essentially says, even if that is your belief, one must do climate change adaptation just as much as if one were a fervent believer in climate change
85Hurricane Damage and Global Warming How Bad Could It Get and What Can We Do About It Today? A Report By: Daniel Sutter for The Competitive Enterprise Institute“Current public policies encourage risky and inefficient coastal development by shifting the cost of hurricane damage to third parties.”“…while insurance reform and building code enforcement are not normally considered as polices to address potential adverse effects from global warming,they should be.”While I very much think that the author totally missed the mark on the reasons that people develop in areas near the water (location, location, location not flood insurance availability); nevertheless the report does a good analysis of the public policy aspects of externalizing the costs of development and how we need to address Hazard Mitigation, building codes, and insurance to deal with the problems caused by development in hazardous areas. The author seems to have also missed the importance of land use and zoning too, but the study does support harm prevention and stopping the externalization of costs of unwise development to other folks who do not benefit from the poor development decisions.Were one to read this report in conjunction with the writings and lectures on this topic of: Roger Pielke Jr, Sam Riley Medlock, Jon Kusler, Doug Plasencia, Larry Larson and me too; then one could get to a better picture of where we need to go.But this Report, seriously flawed though it is worth a look, in my opinion.
86A Solution: Follow the Principles of Emergency Management Hope for the Best Plan for the WorstGo Beyond Flood Insurance and Other Current Regulatory Minimum StandardsHigher Standards for:Development Decision-makingPlanningEmergency Preparedness8686
87But, Must Climate Change Adaptation Mean Set-Back? I do not Believe Set-Backs are the ONLY Answer to Sea Level Rise and Climate ChangeOne Example:August-September Issue of APA’s Planning Magazine“First Tsunami Evacuation Building Planned”City Hall to be Constructed in OregonWill Double as a Tsunami Shelter for 40 Foot Tall WavesUnder Design at Oregon’s Hinsdale Wave Research Facility
88Can Adaptation Include Elevation? From Planning Magazine August –September 2010
90A Conservative View of Property-Rights The Cato Institute Indicates that Compensation is Not Due When:“… regulation prohibits wrongful uses, no compensation is required.”“When the government acts to Secure Rights-when it stops someone from polluting his neighbor … it is acting under its police power … because the use prohibited … was wrong to begin with.”Has anyone heard of the Cato Institute?It is a conservative Think Tank closely associated with the “Constitution in Exile’ and other similar causes.This quote from the 1995 Publication of the Cato Institute “Protecting Property Rights from Regulatory Takings” Chapter 22, p230. The Institute has also testified before Congress about legislation requiring government paying landowners for Regulations limiting what a property owner can do. The Institute testified that there should be provided a “…nuisance exception to the compensation requirement….When regulation prohibits wrongful uses, no compensation is required.” (Testimony of Roger Pilon Senior Fellow and director, Center for Constitutional Studies, Cato Institute. Before the Subcommittee on Constitution, Committee on Judiciary, US House of Representatives, February 10,1995.)Seems like the Cato Institute is OK with NAI thinking too!9090
91What is a “Wrongful Use”? Will Courts Accept the Theory of Climate Change? Especially if the Regulation is the Equivalent of an Ouster from Private Property?Fundamental Principal of Emergency Management is:Hope for the Best…Plan for the Worst.
92In Deciding Whether Regulations “Take”, Courts Examine Impact of regulations on private property ownersDoes the owner “own”?Is the area subject to public trust?Are the proposed activities nuisance-like?Diminution in value?Denial of all economic use?Impact on whole propertyImpact on reasonable investment backed expectations?The nature of the government actionsAdequacy of goals?Factually supported?Nondiscriminatory?
93Avoiding A TakingAvoid Interfering with the Owner’s Right to Exclude Others. (Loretto)Avoid Denial of All Economic Use. (Lucas)In Highly Regulated Areas Consider Transferable Development Rights or Similar Residual Right so the Land Has Appropriate Value. (Penn Central)Clearly Relate Regulation to Preventing a Hazard. See, Different results in Gove v. Zoning Bd. of Appeals, 444 Mass. 754 (Mass. 2005)and Annicelli v. Town of South Kingston, 463 A.d 133 (1983); and Lopes v. Peabody.Establish a Fair Variance ProcedureSee, also American planning Association (APA) Policy Guide on Takings adopted in 1995.9393
94What is a Disaster? Loss of a job? Loss of one’s home? Loss of a community facility?Widespread loss of power?Earthquake-Flood-Fire?
95What is a Disaster? It’s All a Matter of Perspective Victim or disaster survivorsBusiness and industryLocal CommunityStateNational GovernmentIt is also very dependent on that to which a survivor is accustomedSurvivors who are barely getting by ordinarily are very resilient because to them every day is a disaster
96What is a Catastrophic Disaster? Lots of definitions developed based on sizeIn my opinion- those definitions do not work well in the real worldI have worked in situations involving a small situation which was a “catastrophe” and in huge situations which were not considered catastrophicIf government or voluntary agencies or business/industry are functional we do not seem to have a “catastrophe” from the perspective of the survivors and press
97In areas where business and industry, government, voluntary agencies, and society is already fragile we are generally going to be in a catastrophic type situation.Photo: Floodwaters surrounding houses in Dhaka,BangladeshOverseas Disasters
98Note on Catastrophes and Resiliency On the previous slide I note that:In areas where business and industry, government, voluntary agencies, and societyis already fragile we are generally going to be in a catastrophic type situation.Is the United States as economically strong as it was in: 1950? 1960? 1970? 1980?1990? 2000? 2005?Might we be headed towards a truly catastrophic disaster from which even the US economy will have a very hard time recovering?What are the planning implications?What are the societal implications?To whom will the decision makers turn for solutions?
99Must an Event be a “Disaster”? Preparedness PlanningA Community a Business or an IndustryInsuranceDisaster Continuity PlanIndividual PlanningDisaster Kit/PlanOne’s CommunityDisaster resistant building codes/zoningPre-Disaster Mitigation PlanningPost-Disaster Mitigation PlanningPre-Planned Mutual Assistance compactsDisaster Contingency PlanningPlanning to Manage Volunteers
100How Does One Handle A “Disaster”? Design and Plan to have natural events not be a disaster for the business, its employees, the community, its critical suppliers and customersPlan to be resilient, if you have a disaster-think “Black Swan Event”EmployeesSuppliersCustomersKey PersonnelSelf-HelpInsuranceBusiness CommunityShared resourcesCoordination with Local Charities and Voluntary AgenciesCoordination with Government Programs
101Some of the Many Organizations Working to Solve These Problems US Chamber of CommerceNatural Hazard Mitigation AssociationUnited WayInstitute for Business and Home Safety“ Open For Business®”Federal Emergency Management AgencyMultiple NOAA OrganizationsRed CrossUS Coast GuardDisaster Resistant Business Council: Tulsa, OklahomaMany Organizations in Hawai’i, including the National Disaster Preparedness Training Center, the Pacific Disaster Center, Various Agencies of State Government, the University of Hawai’i….
102Typical Flaws in Community and Business Continuity Plans Failure to consider safety of home and families of employees-leads to role conflict for employees and inefficienciesFailure to consider effects of a disaster on upstream suppliers and downstream customersFailure to realize that the very survival of a community, a business and or its management may depend on preparing for and responding to a crisisMention Award Winning Joplin chamber of Commerce plan
103Next Steps for Disaster Planning First, please consider how devastating a Natural Event such as a flood, Tsunami, Hurricane, wildfire, earthquake, volcanic eruption can and unfortunately will be to Hawai’iSecond, consider the vulnerability of the Islands, the economy, the people, the logistics of obtaining food medicine and the necessities of lifeThen, lets do some additional planning, preparedness, and public information dissemination beyond the excellent efforts already underway, for the entire Hawai’i ‘OhanaWho-When-How?
104Get Ready to Contribute So as To Take Advantage of the Opportunity Presented by a Crisis Patchwork Quilt White Paper of Available Pre and Post Disaster FundingUnderstand the Options available pre and post disasterLearn to use other Available Tools:FEMA Risk MAP ProductsNOAA Digital CoastStormSmart Coasts Products and Web-Based Information
105Available on StormSmart Coasts Website Patchwork Quilt:A Creative Strategy for Safe Post-Disaster RebuildingET Introduction of Team and Workshop participants
108There is a Significant Role for the Planning Community in this Important Publication
109Planning is Stressed Throughout the Disaster Recovery Framework-A Huge Step Forward for Planners
110Presidential Policy Directive 8 (PPD-8) Issued by President Obama in March 2011Implementation planning and documentation development underwayPPD-8 deals with the nation’s preparedness for dealing with catastrophic results from natural or human caused eventsIncludes significant planning and hazard mitigation elementsDefinitely many opportunities for additional inputAdditional input from grass-roots planners much needed
111FEMA Just Sponsored the First of Several Stakeholder Meetings The NHMA Representative, at the meeting, Darrin Punchard of AECOM, has prepared a short report available to any of you who desire a copyAny individuals can provide their own input, thoughts or ideas to FEMA at: fema.ideascale.com (click on the link for ‘Presidential Policy Directive 8’). At this site you also may view, comment and vote on those ideas submitted by others. The next FEMA PPD-8 Webinar is Wednesday February 8 from 2:00 - 4:00 p.m. EST
112Possible Action By The You As Individuals; and Possibly as a Class Project Provide Comments on PPD-8Provide Comments on Legislation such as the reform of the National Flood Insurance ProgramIn general get involved!NHMA can supply as much additional information on this topic as you desire.
113A Solution No Adverse Impact-CRS Type: Development decision-making Go Beyond Existing and NFIP & State Minimum Standards forNo Adverse Impact-CRS Type:Development decision-makingPlanningEmergency Preparedness113113
114Might the State of Hawai’i and all All Communities in Hawai’i Wish To Consider Higher Standards? A) Uncertainties in flood elevations-50% confidenceB) Consequences if a factory, water treatment plant or other critical facility is floodedC) 50% chance that 1% flood will be exceededwithin 70 years according to Bulletin 17 B of the WRCD) Changes in flood heights and velocities due to factorssuch as upstream wildfires and mud slides/mudflowE) Sea Level Rise, climate variability and climate change
115Think About: Tsunamis Hurricanes Volcanoes Black Swan Events Limitations of existing NFIP modelsDebris blockage (models assumes no blockage)Wildfires (exacerbated flows from burned vegetation-hydrophobic soils etc.)Technical assumptions and other uncertainties
116Implementing NAI in the Real World Comprehensive watershed future conditions water resources mapping looking at water supply-water quality-stormwater management and floodingInterim MeasureRequire a demonstration that all development does not change the hydrograph for the year BOTH flood and stormIf time permitted we would have some engineers discuss exactly how to do these steps:Low Impact Development (LID)Very much in line with suggestions from the USACE in:CECW-A/CECW-P 8 Dec 1997MEMORANDUM FOR MAJOR SUBORDINATE COMMANDS AND DISTRICTCOMMANDSSUBJECT: Policy Guidance Letter (PGL) No. 52, Flood Plain Management Plans6. The four main strategies and their related tools which should be considered, and whichmay be included as elements of the FPMP are:a. modify human susceptibility to flood damage and disruption, with1) land use regulations, such as a regulatory floodway designation which is morerestrictive than NFIP regulatory floodway criteria of 1-foot rise in the 100-yearflood elevation.2) public development & redevelopment policies, such as “no net increase inrunoff” requirements for new development within its jurisdiction and/or first floorelevation requirements for new development within the post-project flood plainthat exceed the NFIP requirements.3) flood warning systems, including detailed response plans for the post-projectflood plain which provides adequate warning and response to prevent loss of lifeand reduce flood damages to contents of structures.4) flood damage reduction measures such as floodproofing of structures in the7post-project flood plain and/or permanent relocation of structures from the postprojectflood plainusly116116
117So, Beyond NAI, What Can We Do? Two Models I Would Like To Discuss:A) Reduction in Incidence of Airplane DisastersB) Reduction in Incidence of Urban Fires
118A) Reduction in Incidence of Airplane Disasters Enormous Success in the20th Century
120B) Reduction in Urban Fires FEMA Publication America at Risk America Burning Recommissioned FA-223/June 2002FEMA Report in 2002
121Fire Loss in Urban United States “One hundred years ago, American cities faced a devastating challenge from the threat of urban fires. Whole cities had become the victims of these events. Entire neighborhoods lived with the very real threat that an ignited fire would take everything, including their lives.”From: America at RiskAmerica Burning RecommissionedFA-223/June 2002
122Fire Loss in Urban United States “Today, the threat of fires is still with us. But we have done a lot to address the risk, minimize the incidence and severity of losses, and prevent fires from spreading. Our states and localities have an improving system of codes and standards; most of us are aware of the risks; We have accomplished a lot, but we have much more to do.”From: America at RiskAmerica Burning RecommissionedFA-223/June 2002
123Build On Our Success“Today, we must not only continue and reinvigorate our successes, but also expand them to include the natural and man-made threats that each of our counties, cities, towns and villages face every day – floods, earthquakes, hurricanes, hazardous material spills, highway accidents, acts of terrorism, and so much more.”From: America at RiskAmerica Burning RecommissionedFA-223/June 2002
124Take Away MessageCommunity leaders have responsibility for public safety and need to be aware:Many areas can flood, or be damaged by foreseeable natural eventsUninsured victims will likely sue- and will try to find someone to blameFair harm prevention regulations help everyoneThree messages; 27 words.This is especially important for levee owners or operators.They should very much want all potentially affected by the failure of their facility to have flood insurance to protect their home, pension, community funds.124124
125Message For All Involved In Emergency Management & Community Development The fundamental rules of developing livable communities, as articulated, by Federal Law, envision housing and development which Is:DecentSafeSanitaryAffordableThe Housing Acts of 1937, 1954, etc., as amended.125125
126Development Destroyed or Damaged by Foreseeable Natural Processes Fails That Vision! Housing and development which are so poorly planned, engineered or designed that they are destroyed by such natural processes are:IndecentUnsafeUnsanitaryUnaffordable- by the flood victims, by their Community, by the State, and by our Nation.126126
127Summary Fundamentally our society must and will choose either: Better standards to protect resources and peopleorStandards which inevitably will result in destruction and litigationThe higher regulations of the FEMA Community Rating System are, I think, taking us in the right directionEach of you will play a key role in helping create a safe and sustainable future; or in continuing & making worse the incredible mess in which we are, alreadyYou have made a choice towards helping make things better by learning how, right here. Please keep going!
128NHMA Membership Includes People wanting to make a difference and work towards reducing losses from disastersEngineers, planners, floodplain mangers, government officials, community activists, academics, practitioners, students, etc.People involved in building resilient organizations and communitiesStudents for a mere $15 per yearWe would like to include you!