No one-size-fits-all prescription for adapting to sea-level rise is possible for Florida’s coastal communities. For example, while a community may have a responsibility to inform people about coastal hazards such as storm surge and sea-level rise, the community will also want to encourage economic development and investment that makes the community vibrant and contributes to the tax base. Each community needs to assess for itself its vulnerabilities and how to find the balance between the many competing interests that present themselves in adaptation to sea-level rise and coastal planning generally.The following materials offer planners and attorneys materials to help them analyze the different planning and policy options for addressing sea-level rise and other coastal hazards.
This article, published in the November 2013 issue of the Florida Bar Journal, discusses the potential legal liabilities and context for local government maintenance and upgrading of drainage system in response to decreasing efficacy of such systems due to sea-level rise. The article concludes that in Florida it is likely that whether a local government will be liable for failure of a drainage system to keep properties drained in the face of sea-level rise will hinge on the legal determination of whether such flooding is ascribed to a failure to maintain or a failure to upgrade the drainage system. While the analysis in the article focuses specifically on Florida law, it appears that the reasoning and much of the law may be similar in other states.
Adaptation to sea-level rise is a complex–and costly–issue for local governments. Local governments will not have sufficient funds to undertake activities that keep all property owners satisfied if even the more modest increases in sea-level rise occur. Thus, those engaged in adaptation have increasingly sought to understand what types of adaptations give the most “bang for the buck” when adapting to sea-level rise. A cost-benefit analysis of adaptation options presents great challenges as there are questions of scope of the costs and benefits, timing, amount of projected sea-level rise, multiple adaptation options, possible opportunity costs, and other variables. A report commissioned by the Coastal Services Center of NOAA developed a report that provides a framework for conducting a cost-benefit analysis that will help local decision makers focus their inquiries into the costs–and benefits–of different adaptation options.
The Bert Harris Act in Florida Statutes creates a “takings” cause of action in addition to constitutional law for certain regulatory burdens on property. This 23-page report looks at both procedural as well as substantive issues in the act while incorporating discussion of recent cases and the 2011 legislative changes to the act. Much of the report focuses on interpretation of terms in the act and potential legal arguments that local governments might use if defending ordinances aimed at sea-level rise adaptation.
“Rolling Easements,” James G. Titus, Climate Ready Estuaries Program, and U.S. Environmental Protection Agency (June 2011)
This detailed document offers a thorough and detailed introduction to the concept of a rolling easements. This primer defines what a rolling easement is, gives examples of how rolling easements may function, looks at ways of creating them, and many other specifics for design and use of rolling easements. This document itself recognizes its own limitation in that it is a national-level document. Thus, while it sometimes presents examples from states, the document is not designed to evaluate state property law. As a beginning point in evaluating rolling easements in Florida, this document may be combined with the resource “Use of Future Interests in Land as a Sea-Level Rise Adaptation Tool.”
This document covers four broad areas of tools that local governments can use to adapt to sea-level rise: 1)Planning tools, 2) Regulatory tools, 3) Spending tools, and 4) Tax and Market-based tools. While it is not specific to Florida, the broad overview it provides is worthwhile.
Sea-Level Rise Ready: Model Comprehensive Plan Goals, Objectives, and Policies to Address Sea-Level Rise Impacts in Florida
For decades Florida has been known for its careful land use planning system. Even after numerous changes in 2011, such as decreasing the role of state review of local comprehensive plans, Florida local governments continue to have powerful tools for realizing a community’s vision of itself. Land use planning through a local government’s comprehensive plan remains one of the best ways for a local government to begin to address coastal hazards such as sea-level rise. The University of Florida Levin College of Law’s Conservation Clinic, working with the Charlotte Harbor Estuary Program and with support from Florida Sea Grant, developed model comprehensive plan goals, objectives, and policies which can help local governments envision ways in which their comprehensive plan can help them adopt to sea-level rise. The model goals, objectives, and policies are available in a PowerPoint® presentation here.
This very short document divides elevation strategy into elevation of land area and elevation of structures and highlights a few of the issues with each, including likely legal stumbling blocks.
Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property Purchaser?
This article, published in Volume 26 of the Journal of Land Use & Environmental Law, delves into the concept of “reasonable, investment-backed expectations in federal takings law. This leads into analysis of the importance of “notice” in evaluation of reasonable, investment-backed expectations. The importance of notice—and issues of fairness and personal responsibility—coalesce to support the idea that local governments could institute notice or disclosure ordinances for coastal hazards. The article cites to examples of disclosure or notice in other contexts and makes recommendations for drafting of a local notice ordinance.
Florida’s Coastal Hazards Disclosure Law: Property Owner Perceptions of the Physical and Regulatory Environment
This document contains research, findings, and recommendations related to Florida’s current coastal disclosure statute. This statute requires that potential purchasers of coastal property that is seaward of the Coastal Construction Line receive certain information about the dynamics of coastal property and regulations such as the Coastal Construction Control Line that impact uses of property. Research indicated that the current law is not accomplishing its stated goal, so the document addresses shortcomings in the statute by offering proposed statutory revisions. These revisions reflect the legal analysis in the above document “Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectation for Coastal Property Purchasers?”
This three-page document examines the prospects of using future interests in land for adaptation purposes in Florida. James Titus of the U.S. EPA has advocated for rolling easements for years, and his 2011 primer on the topic extensively treats the possibility of using future interests in land to implement the rolling easement concept. Specifics in Florida law present serious difficulties that likely mean future interests present less viable, flexible options than conservation/environmental easements in Florida.
This links to a page with agendas and presentations from the local government adaptation workshops Florida Sea Grant has organized in conjunction with local partners.