Questions/Issues raised at the November 6, 2015 Climate Adaptation Academy Workshop—Legal Issues in the Age of Climate Adaptation

We have assembled the questions submitted at the close of the conference, grouped them in broad topic areas and present them here for your input and comment. As we noted, this was the first in what we expect to be a series of conference/workshops on climate adaptation legal issues. We hope to use your feedback to help shape the next in the series. Please feel free to share your thoughts using our system of categorizing the questions or a more general approach or providing answers to the questions! We look forward to hearing from you. Keep checking the website for additional postings. Letters (A, B, C, D) following each of the questions are keyed to legend below.

A:  Question for which we can seek answers that are likely available.
B:  Questions which are ripe for further research, legal or otherwise.
C:  Questions that form the basis for another workshop(s)
D:  Not suitable for/unnecessary to follow-up

Flood

1. Is there a legal liability to a town for identifying properties that may be flooded in the future by sea level rise in a coastal resilience plan?  B
2. What happens to the legal ownership of property when it is permanently inundated?  A
3. If new flood maps are developed (as was mentioned), will towns be able to rely on these for issuing permits instead of having to rely on private firms?  A/B
4. How does the cost of flood control structures in Holland compare to the benefit and to the damage pushed onto adjacent countries?  D
5. Does State or Federal action in the floodplain include residential mortgage loans to individuals? A
6. Is the National Flood Insurance Program likely to be eliminated?   D
7. Should building above the FEMA elevation line be required to address future rise?   B/C

Government Action - Zoning/Plans/Regulations

1. Too much talk.  No Action.  Political guts?  D
2. What is the plan for developing a State position on resiliency implementation tools and laws?  100, 100+1, 100+2, 100+3, 500, 500+1, 500+2 for building permits.  CONSISTENCY COUNTS!  While flood zones are used, funding sources share conflicting standards.  B/C
3. How can local boards and commissions cooperate with each other in order to write coherent, compatible enforceable local regulations?  In many cases, there is competitiveness and antipathy between and within local bodies.   B/C
4. What will change before or will the legal folks in Hartford visit each town above shoreline to improve education?   B/C
5. Can new technology that helps to protect houses against storm and flood be codified and incorporated into the existing codes that govern new home construction?   A/B
6. It seems clear that existing laws and authorities are firmly entrenched in current conditions.  Climate adaptation and building resilience – both socioeconomic and environmental resilience require regulating to a future condition full of inherent uncertainty.  How can we rectify this conundrum that has a better outcome of protecting human health, welfare and the environment?  What will be in it?   B/C
7. What is DEEP’s thinking with regard to permitting the installation of composting toilets in low lying coastal areas where septic systems are failing? A
8. 100 year and 500 year floods – are they sufficient to plan for SLR?  B/C
9. In the reverse of Sams, what is the Town’s/State’s obligation to approve (or) liability if it denies a hardened structure/seawall to address the “broken tooth”, the gap in a seawall where one or two properties are not protected and rising waters have an increased impact?   B
10. Rather than burden ourselves with [new] government laws, plans, programs, standards and physical improvements, can we instead update our current* mandatory framework to “adapt” to resilience to extreme weather and SLR? B/C
    *i.e. Coastal Management Act, Natural Hazard Mitigation Program, National Flood Program, Cultural Resource Preservation...
11. How do we develop regulations, including building codes, to anticipate future environmental trends and consequences within reasonable probabilities, rather than continuing to “fight the last war” based on historical data?   B/C
12. What’s the best thing for a municipality to consider first? Are there model regs/ordinances?  Is there model language for plan of conservation and development?  And/or harbor management plans?   B/C
13. There seems to be a concentration of concern for individual properties as opposed to the need to address infrastructure issues.  Any estimates of the size of this problem? A
14. If a municipal authority has reason today to believe that areas of the community are at risk of sea level rise within the next fifty years, including risk to supporting infrastructure, what obligation does the municipality have to inform current and future property owners of their exposure to that risk?   B
15. How have shoreline communities resolved/addressed preservation of historical structures vs. flood mitigation measures, i.e., raising a structure?  Do we let nature take its course, “oh well...”?  B
16. Is there any real hope of adaptation when politicians prioritize protection of private property above all?  Note changes in Public Acts 12-101 and 13-179 that facilitated the building and rebuilding of coastal flood and erosion control structures.
    PA 12-101: An Act Concerning The Coastal Management Act And Shoreline Flood And Erosion Control Structures
    PA 13-179: An Act Concerning The Permitting Of Certain Coastal Structures By The Department Of Energy And Environmental Protection  D
17. What about deploying overlay zones that define restrictions in flood plains or maybe special permit requirements?   B/C
18. When raising a house, where is the measurement taken for elevation specs, living area or bottom of structure?   A
19. How does local/State government start to enact meaningful statutes and regulations that address climate change, knowing that this will affect property rights?  How do we start changing the laws involved with “takings”?   B/C
20. There were unsuccessful attempts to modify the statutes after Buttermilk Farms LLC v. Plymouth PZC.
    - Does anyone have any insight into that?
    - How would you (the panel) modify the statute? Simply allow off-site improvements or set
    specific circumstances or criteria?   B/C
21. Though a town can’t require off-site improvements, could it deny a subdivision through its associated CSPR because such subdivision approval would be inconsistent with requirement to manage coastal hazard areas so as to “ensure that development proceeds in such a manner that hazards to life and property are minimized”?  B
22. If a town can discontinue a public road:
    -Can it discontinue a road because it is subject to flooding during storm events?
    - Suspect it will be subject to flooding during storm events over time with predicted
    sea level rise?   B
23. Can a town discontinue sewer or water service to areas subject to flooding?  B

Property Rights/Permitting

1. How can you make it easier for coastal residents to protect their property?  There needs to be a process to make permitting easier, not harder.  Coastal residences represent BIG taxes to towns and should be able to more easily protect and preserve their property.  B
2. Re:  The water view destruction and compensation...a storm protection dune blocking the home owner’s view, Borough of Harvey Cedars vs. Karan.  Is there a common law right to water views existing at a certain point in time?  I didn’t think so.   A
3. So what was the final resolution with the Sams property? The wire would have dissolved in 20 years – no problem!  D
4. Since all beach restorations, new dunes or large berms will be washed away, does it make sense to consider break waters parallel to the shore to break the force of waves and is that legally possible?  A
5. If mean high water moves inland, shouldn’t taxes also decrease?  Should towns change their zoning regulations so they measure lot area from the CJL instead of the mean high water line?  B
6. State vs. Federal regulatory framework placement of critical facilities within a floodplain; thoughts on regulatory framework on dry egress with regard to floodplain management.  B
7. Does the coastal jurisdiction line have any impact on common law in Connecticut or will high tide line still apply for common law purposes?  A
8. Does beach nourishment change property lines?
   - Does it make a difference if it is owner-  or government-initiated?
   - Are there tax impacts?  Does the assessed value change?
   - Does the calculable buildable area change?
   What about other owner-initiated changes?   B
9. Should consistency between assessed area and buildable area be required?   Perhaps a policy/takeaway question.  B
10. Do changing property lines change regulatory jurisdiction?  Mean high water vs. high tide line vs. coastal jurisdiction line. A
11. Is it clear (ha) that mitigating or building resiliency against the effects of climate change or sea level rise is a legitimate "public purpose"?  Assuming so, what level of proof or certainty as to future flood threat or sea level rise would be required to:
    - sustain for stringent regulatory approaches?
    - sustain site- specific land use decisions?  B
12. Can inaction by a government entity be a taking?  i.e. If continual erosion is known and expected and makes private property undevelopable must the government take action (build a F&ECS) to mitigate the erosion and keep the property(ies) whole?  B
13. Property owners A and B have a common seawall that is destroyed by a storm. Owner A rebuilds, owner B does not. Another storm event occurs and erodes Owner A land at the AB property line behind A’s seawall. Does A have any claim against B?  B
14. According to Atty. Shansky, an avulsive event does not result in a change of property line while gradual erosion or accretion does. If a hurricane severely erodes my property, can I fill in the eroded area without getting a permit from DEEP?  How does an avulsive event affect the CJL? B
15. On one of Asst. AG Wrinn’s slides it said the seawalls are the death of a beach. If the construction of a seawall has resulted in loss of beach and public trust land, can legal action be taken? Against whom—the property owner, DEEP (DEP) for permitting the structure?  B

Misc. Questions

1. What/how should a direct land/home owner do? Sell, protect, or do nothing?  D
2. What would be the assessed value of the $80K house on River Road in Clinton if not subject to flooding?  D
3. What is the status of the Chicago case?  Scheduled for trial, judgment or on appeal?  Comment on the NY AG's investigation of Exxon/Mobil; what remedy would be pursued? A
4. Is the impact of SLR and salt water intrusion on shoreline agriculture being addressed?   A
5. How can we re-invigorate good science into the process?  It was barely mentioned and seems to have little play in the black & white of law/case law.  The key to meeting health and welfare and environmental needs is integrating science with law; the only way to build resilience.  B
6. We saw issues of climate change for coastal communities this morning.  What about communities along river and lakes?  Different legal basis?  A/C