At the American Planning Association national conference in Atlanta yesterday, I started and ended the day attending sessions on Takings, and wedged in the middle sessions on Resilient Zoning Post-Sandy. Of course, the issues — unfortunately — overlap, as local governments struggle to plan and implement regulations to address climate-change related risks that can withstand takings challenges.
One presenter yesterday commented that climate change is the most serious and challenging environmental problem today, lamenting that an approach to regulatory takings that makes local governments foot a bill for climate change mitigation and adaptation that they cannot pay will result in retreat by local governments from the problem — a result we cannot afford.
John Nolon, Pace Law Professor and Director of the Pace Land Use Law Center, and Chicago land use attorney David Silverman discussed creative approaches municipalities can take to climate change resiliency that, while admittedly untested, may avoid a takings challenge — or at least a successful takings challenge. They warned, however, that to avoid a takings challenge in the post-Lucas and Koontz world, municipalities must consult with their legal counsel to carefully structure the application and negotiation process and consider the role of non-regulatory mechanisms, including the comprehensive plan.
For example, municipalities must avoid comments in negotiations that place what may be construed as “demands” on the property owner that deprive the property of value. Careful structuring of the application and negotiation processes, especially in combination with a comprehensive plan that includes climate change adaptation and mitigation planning, may allow municipalities to begin to address climate change while also facilitating sustainable development and avoiding a takings challenge.
For more on climate change and takings, see, for example, Professor John Nolan’s article on sea level rise and regulatory takings.
For a detailed discussion and evaluation of NYC’s climate change adaptation and mitigation efforts, see my recent article On the Waterfront: NYC’s Climate Change Adaptation and Mitigation Challenge.