Zoning for Climate Change Resiliency

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.

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One thought on “Zoning for Climate Change Resiliency

  1. Professor Adams-Shoen, I read you article, Part 1 of your two-part series relating to NYC’s adaptation and mitigation initiatives relating to planning for sea level rise within the City’s boundaries. I look forward to your Part 2 of the series. I am interested on how NYC’s initiatives relate to initiatives by other counties and municipalities here on Long Island; especially to the New York State Sea Level Rise Task Force, created in 2007, which includes (or had included at one time) the City as a member. According to what I read in the Task Force’s “Pre-Sandy” 2010 report to the Legislature, NYC’s PlaNYC did not support five of the Task Force’s 14-point recommendations presented at that time. As a Long Island professional involved with local SEQRA review programs, I found that many of the proposed developments include the construction of multi-family housing along coastal communities, which do not include consideration of impending sea-level rise in municipal zoning codes. I have actually reviewed comments by professionals retained by developers stating that such consideration is not appropriate, since it is not regulated at this point in time. This attitude may be unfortunate, since the current trend here on Long Island is to increase development of multi-family affordable housing to mitigate against the current movement of younger residents off of the Island. If sea rises according to the current set of predictions, a mere 35 years from now a significant portion of the housing developments constructed along shorelines could be uninhabitable, or involve an enormous amount of public resources to protect these properties or respond to the predicted increase in disaster response costs to rebuild. I am hoping that the efforts undertaken by the City may influence the neighboring communities here on Long Island.

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