The best way to avoid losing in court is to stay out of court. One of the strengths of the NAI approach is that its clear goal (the prevention of harm) fosters and encourages cooperation between landowners and regulators as they work together to try to find solutions to the problems associated with proposed projects. Such collaboration is a great way to stay out of land court. When avoiding court isn’t possible, following the NAI approach can greatly increase the chances that local governments will win in lawsuits arising from their floodplain management practices. The most common and historically problematical challenges that local officials face while trying to regulate use of private property are allegations of “constitutional takings.”
Takings background:
“Not all the uses an owner may make of his property are legitimate. When regulation prohibits wrongful uses, no compensation is required.” – The Cato Institute
This fact sheet summarizes a complex body of law under the so-called “Takings Clause” of the Fifth Amendment to the U.S. Constitution. This summary is not intended to be legal advice for any particular situation, and may not be relied upon as such. To determine whether a particular regulation would cause a taking, communities should consult with an attorney.
Property owners file takings cases when they believe regulations violate their constitutional property rights. The legal basis for these arguments can be found in the Fifth Amendment of the U.S. Constitution, which prohibits the government from taking private property for public use without compensation. The interpretation of the courts through the years has clarified that the Fifth Amendment encompasses more than an outright physical appropriation of land. In certain situations, the courts have found that regulations may be so onerous that they effectively make the land useless to the property owner, and that this total deprivation of all beneficial uses is equivalent to physically taking the land. In such a situation, courts may require the governing body that has imposed the regulation to either compensate the landowner or repeal the regulation. Needless to say, with local budgets strapped and coastal land values skyrocketing, it is rarely economically feasible for local governments to compensate landowners when, for example, prohibiting a house on a solid foundation in an area known to flood, or preventing the construction of a seawall to protect a home on an eroding bluff.
NAI to the Rescue:
It is critical that management decisions respect property rights and follow general legal guidelines (see the “Legal Dos and Don’ts of Floodplain Management” below). The courts have made it very clear that property rights have limits. Federal laws acknowledge that property owners do not have the right to: be a nuisance, violate the property rights of others (for example, by increasing flooding or erosion on other properties), trespass, be negligent, violate reasonable surface water use and riparian laws, or violate the public trust.
Legal Dos and Don’ts of Floodplain Management
- Do clearly relate regulations to hazard prevention.
- Do help landowners to identify economic uses.
- Do apply identical principles to government activities.
- Don’t neglect your duty to manage the floodplain. (A hands-off approach is the surest way to be successfully sued.)
- Don’t apply regulations inconsistently or arbitrarily.
- Don’t interfere with landowners’ rights to exclude others.
- Don’t deny all economic uses. Consider the use of transferable development rights in valuable, heavily regulated areas.