The recent rash of natural disasters has put a spotlight on hazard recovery and mitigation planning nationwide. Many of the key legal considerations in any post-disaster situation, such as nonconforming uses, variances, and building permits, can often seem like standard planning issues.
However, in the wake of a flood, wildfire, storm, or earthquake, they take on a new twist and urgency as local planning commissions are confronted with hundreds of these issues across the entire community all at once, and are under pressure to get the community back on its feet as quickly as possible.
The keystone of an effective process is always the disaster, or recovery, plan. Whether it is an official recovery plan recognized by the various levels of government (federal, state, local, and even neighborhood) will determine the effectiveness and the legality of a community's recovery.
Many community leaders might think they already have one of these on the shelf, but are often caught off guard when they realize that their disaster plan is either a short chapter in a master plan that was adopted a few years ago, a dated public works construction schedule, or nothing at all.
As the frequency of disasters increases and federal and state rules for obtaining assistance continually change, developing a disaster or recovery plan has become a key step for planners in at-risk communities. Thus, specific recovery plans, or newly updated master plans with a robust recovery element, are more common now than ever before.
After every disaster, following a review of a community's recovery plan, the discussion inevitably turns to the "big three" legal planning issues that come with implementation:
A moratorium is a powerful and appropriate legal planning tool following any disaster. The most common include temporary prohibitions of building permits, zoning changes, or waiver requests. In these situations, the 2002 U.S. Supreme Court case Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency is the key legal touchstone for planners. Lake Tahoe guides planners using this powerful tool, specifying that clear standards for each moratorium must be set, including a specific reason, a specific time period, and a specific result.
The length of moratoria must also be reasonable, and criteria for an extension should be stated in the adoption motion. Most communities use 12 to 18 months as a standard "reasonable" approach. Reasons for extensions beyond this length should be carefully documented with facts and data.
Legal Nonconforming Rules
A review of existing legal nonconforming rules in each community's existing zoning rules or codes prior to any disaster is critical to prepare the planning staff for the blizzard of questions and requests that will come as the community is rebuilt. Whether a use conforms to the prior code and has rebuilding rights will be a case-by-case determination. The level of destruction, the level of use, and any proposed changes in use or intensification of the use will be crucial as planners sort out each property owner's rights to rebuild. Thus, planners must review the current rules and anticipate the impact on the staff if dozens and dozens of citizens show up at the planning office.
The overarching concept of takings is woven throughout every discussion, meeting, and legal analysis about disaster planning. The ever-present concern of depriving a citizen of established property rights without "just compensation" (as the Fifth Amendment to the Constitution clearly states) will be the starting point of countless analyses and debates.
Does the regulation (new or old) go too far and result in a taking, as Justice Holmes opined in Pennsylvania Coal Co. v. Mahon (1922), or does the public purpose achieve "rough proportionality," as laid out in Dolan v. City of Tigard (1994)? These questions will be the bookends of every debate.
A good rule for planners is to make the regulations fair and transparent (hold public hearings and make sure the community know about the rules) and to always make sure the regulations have a clear basis in either the master plan or the disaster recovery plan that is guiding the rebuilding of the community.
Lastly, and perhaps most importantly, community awareness before, during, and after a disaster is critical because it not only meets the due process requirements of public hearing and community input, but it will also raise the level of trust and reliability of the planning component of each disaster recovery event.
APA invites planners to use its extensive collection of research, education, and communication resources to support disaster recovery efforts. Visit www.planning.org/resources/hurricane/.
Reprinted from Legal Lessons, Planning magazine, December 2017.
Top image: Planning workshop participants point to a location on a street map. Photo by Ryan Scherzinger, AICP (CC BY-NC 4.0). Copyright American Planning Association.
About the Author
Stephen D. Villavaso is a planner and lawyer with over 40 years of practice in land use, zoning, and master planning. He is an adjunct professor of land-use law at the University of New Orleans Planning Department and Loyola University School of Law.